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JOHN JAY 



GEORGE PELLEW 




BOSTON AND NEW YORK 

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COPYRIGHT, 1890, BY GEORGE PELLEW 

COPYBIGHT, 1898, BY HOUGHTON, SIHTLIN&CO. 

ALL EIGHTS RESERVED 



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EDITOK'S PEEFACE 

In preparing this new edition of the American 
Statesmen series, it has not been found necessary 
to make any alteration in the life of Jay. Since 
the book was written, the author, Mr. Pellew, 
has unfortunately died. But he had performed his 
work so thoroughly that it is not likely that, if he 
had lived, he would have desired to amend it in 
any particular. The upright character and open 
career of Jay left no opportunity for posterity to 
make discovery of unsuspected schemes or intrigues, 
ambitions or failures, such as often give rise to sur- 
prise and discussion in the cases of many men in 
public life. From the beginning to the end, all 
which he did lay open to inspection in broad day- 
light. His biographers find nothing to explain, 
nothing to dispute over, nothing to place in new 
lights. The only matter of debate concerns the 
famous treaty which he negotiated with England. 
Whether this was as favorable as it should have 
been for the United States was a question disputed 
between the two political parties at the time, and 
which has continued to cause some disagreement 
between historical writers since then. Opinion is 



O^^ 



^ 



f 



vi EDITOR'S PREFACE 

gradually taking the shape that he obtained all 
that was possible, if not all that was desirable. 
But whatever may be held by different authori- 
ties upon this point, it is not likely that any new 
facts can ever be adduced to add to or to change 
the views and arguments heretofore so fully ex- 
pressed. 

The works of Mr. Jay are in process of publica- 
tion. But it is not supposable that they will give 
occasion for any change in this volume. Mr. 
Pellew was a descendant of Mr. Jay ; he had the 
advice and assistance of the Hon. John Jay, who 
was the head of the family when this biography 
was in preparation ; and he had the free use of all 
the papers and manuscripts from which the pub- 
lished Works are only a selection. Nothing, there- 
fore, is coming to light in the way of unexplored 
material. 

THE EDITOR. 

January, 1898. 



PREFACE 

The public life of John Jay was so active and 
varied that it is almost impossible to compress the 
essential facts into small compass without losing 
much of their interest and suggestiveness. More- 
over, he was by disposition so reticent and unim- 
pulsive, so completely self-controlled, that there is 
scarcely any material for constructing a history of 
his inner private life. He was singularly free 
from those faults which, trivial or serious, attract 
men's love by exciting their sympathy or pity. 
Conscientious, upright, just, and wise, John Jay, 
like Washington, survives in the popular imagina- 
tion as an abstract type of propriety ; and his fair 
fame has been a conspicuous mark for all who are 
offended by hearing an Aristides always called the 
Just, or who, from an a 'priori notion of history, 
believe that statesmen have always been as cor- 
rupt, civic virtue as tainted, and politics as demor- 
alizing, as they are in our time. In this belief 
there is undoubtedly much truth, — but there are 
exceptions to most rules, or rather what is true of 
a generation in the average is never true of every 
individual comprised in it, — and a careful study 



viii PREFACE 

confirms the contemporary opinion that the char- 
acter of Jay was, unfortunately for mankind, ex- 
ceptional. 

Any life of John Jay must, of course, be based 
on the two volumes of his Life and Letters by his 
son. Judge William Jay ; but an undue sense of 
the sanctity of domestic life prevented then the 
publication of anything not clearly of a public, 
almost of an official, nature. Subsequently, as the 
Works and Letters appeared of Washington, John 
Adams, Madison, Jefferson, Fisher Ames, and the 
other Revolutionary patriots, and the gleanings of 
Sparks and others from the government papers, 
more light was thrown on the motives and move- 
ments of the time, and Jay's life was rewritten by 
Flanders, who dispelled, almost for the first time, 
the odium, begotten by partisanship of ignorance, 
that so long assailed the memory of the early Fed- 
eralists. Certain popular prejudices still survived 
from the days when blind devotion to France, a 
veritable " love frenzy," was a test of party fealty, 
and these prejudices obscured any clear view of 
the peace negotiations of 1782. Sparks, editing 
official documents, interjected with misleading pos- 
itiveness a note that Jay's suspicions of France 
were unfounded, — and this suggestion, itself un- 
founded, has until recently been followed implicitly 
by historians, even by Mr. Bancroft. A hundred 



PREFACE ix 

years after the event, papers from the French 
archives published by De Circourt, the correspond- 
ence between Vergennes and Luzerne, Fitzherbert 
and Fox, Oswald and Shelburne, in the " Stevens 
MSS.," and the revelations in Fitzmaurice's " Life 
of Shelburne," enabled the Honorable John Jay 
to prove the absolute correctness of his grand- 
father's convictions, and the consequent necessity 
of the course of action he adopted. This new 
information has not yet been incorporated into any 
life of Jay. 

Within the last year the third volume has been 
published of Doniol's " La participation de la 
France dans I'etablissement de I'independance des 
Etas-Unis," which contains the official documents 
relating to the treaty of Aranjuez, elucidating with 
extreme fullness the relations between the courts 
of Paris and Madrid in the critical years of 1778, 
1779. The " Jay MSS.," from which a selection 
is now preparing for publication, and an elaborate 
digest, with quotations, of the "Stevens MSS.," 
have also been studied with minute care ; and to 
these sources, and to the constant valuable sug- 
gestions and criticisms of my uncle, the Honorable 
John Jay, is due whatever of new or original may 

be found here. 

GEORGE PELLEW. 
New Yobk, March 1, 1890. 



CONTENTS 

OHAP. PASS 

I. Youth, 1745-1774 1 

n. CoNSEBVATivE Wmo Lbadbr, 1774-1776 . . 21 

m. Eevoltjtionabt Leader, 1776-1779 ... 53 

IV. CONSTBUCTIVE STATESMAN, 1778-1779 . . 68 

V. President of Congress, 1779 .... 94 

VI. Minister to Spain, 1779-1782 .... 107 
Vn. Negotiator of Peace : The Attitude op France 

IN 1782 129 

Vm. The Negotiations, 1782-1783 . . . .149 

IX. Secretary for Foreign Affairs, 1784-1789 . 205 

X. Chief Justice of the United States, 1789-1795 . 285 

XI. Special Envoy to Great Britain, 1794-1795 . 263 

Xn. Governor op New York, 1795-1801 ... 284 

Xni. In Retirement, 1801-1829 .... 303 

Index 327 



ILLUSTRATIONS 

John Jay Frontispiece 

From the original portrait by Gilbert Stuart, in Bed- 
ford House, the homestead of the Jays at Katonah, N. Y. 

Autograph from Tuckerman's " William Jay." 

The vignette of " Bedford House " is from a photo- 
graph. Page 
Silas Deane facing 98 

From a painting in the possession of the Connecticut 
Historical Society, Hartford, Conn., said to have been 
copied and enlarged from a miniature. 

Autograph from Winsor's " America." 
Lord Shelburne facing 198 

From an engraving in " Lodge's Portraits," vol. vi., 
after a painting by Sir Joshua Reynolds. 

Autograph from " Correspondence of the Earl of 
Chatham," vol. iii. 
Facsimile of John Jay's Handwriting .... facing 286 

Note written from New York, June 29, 1795, to Presi- 
dent Washington, accompanying his resignation of the 
office of chief justice. 
General Philip Schuyler facing 296 

From the original painting by John Trumbull (1792), 
by the kind permission of the present owner, Philip 
Schuyler, Esq., of Irvington-on-the-Hudson. 

Autograph from Winsor's " America." 



JOHN JAY 



CHAPTER I 

YOUTH 

1745-1774 

John Jay, the eighth child and sixth son of 
Peter Jay and Mary, the daughter of Jacobus Van 
Cortlandt, was born in the city of New York, on 
the 12th of December, 1745. His father was a 
wealthy merchant, who retired from business at the 
age of forty to live at a country house and farm 
at Eye in Westchester County. The family was 
of French descent; the great grandfather, Pierre 
Jay, a Huguenot merchant of La Rochelle, left 
France on the revocation of the Edict of Nantes, 
when the greater part of his property was con- 
fiscated, and died in England. The grandfather, 
Augustus, after many hazardous adventures, settled 
in New York in 1686, where he married Anna 
Maria Bayard, a descendant of a Protestant pro- 
fessor of theology at Paris, who had likewise 
chosen to leave his country for religion's sake, 
making his home in Holland. Through his wife's 



2 JOHN JAY 

relations, the Bayards and Stuyvesants, and his 
brother-in-law, Stephen Peloquin, a merchant of 
Bristol, England, Augustus Jay soon formed a 
large business connection. From Bristol came in- 
voices of kerseys and mohairs, hats, gloves, and 
beer; to the Barbadoes he shipped flour, bread, 
pork, and hams, receiving in return cargoes of 
sugar and rum ; and occasionally his ships made 
adventures to Surinam. Peter Jay soon became a 
partner with his father , in 1740 his name appears 
as one of the aldermen of the city of New York ; 
and the family was allied with the manorial fami- 
lies of Van Cortlandt and Philipse, to which was 
soon to be added the most influential of all, the 
family of Livingston. 

From Peter Jay, who seems to have been a typi- 
cal New York merchant of the last century, "a 
gentleman of opulence, character, and reputation," ^ 
his son John inherited many marked traits of char- 
acter, as is testified by the now yellowing pages 
of the old merchant's letter book. In letters to 
his son James,^ in England, even in the brief busi- 
ness-like notices of the death of relations, is shown 
the piety of the man and of the family : " Let us 
endeavor to adhere to the worship of God, and, 
observing his holy ordinances as the rule of our 
lives, let us disregard the wicked insinuations of 

^ Jones, History of New York, ii. 223. 

2 Afterwards knighted for his success in raising funds in Eng- 
land for King's College, now Columbia College, a member of the 
New York Senate, and a physician of distinction in New York. 



YOUTH 3 

libertines, who not only deride our most Holy Reli- 
gion and the professors of it, but also endeavor to 
gain prosilites to their detestable notions, and so 
rob the Almighty of the honour and adoration that 
is due to him from his creatures." ^ 

Now and then a casual sentence opens a tiny 
chink through the shutters that close so tightly 
round that little family circle. " When you come 
home," his father reminds James, " don't forget to 
bring me Bishop Patrick's Devout Christian, a 
book you doubtless well remember, as it contains 
the family prayers we always use." ^ "I desire 
you," he says a few months later, " to make me a 
present ... of a box with five or six groce of neat 
long pipes, but not very long and weighty, and to 
your mother an oval tortoise shell snuff box, with 
a joint to the lid, the length of the box not ex- 
ceeding six inches." ^ One wonders whether James, 
when he returned after many years, did remember 
that snuff box so minutely described, and whether 
it was the recollection of those " neat long pipes " 
that made John Jay always so fond of long 
" Church wardens." 

Occasionally politics are mentioned. There is, 
however, nothing but loyal enthusiasm for the suc- 
cess of the troops during the French war, honest 
regard for the successive governors, and regret for 
their mistakes and mischances, especially for the 

1 To James Jay, December 7, 1751, Letter Booh of Peter Jay, 
iii. 
« September 2, 1754. » November 26, 1754 



4 JOHN JAY 

fate of Sir Danvers Osborne, " our late new gov- 
ernor," who " very unhappily committed a vio- 
lence upon himself, and was found in a melancholy 
situation fastened with his handkerchief." ^ But 
from the date of the Stamp Act, and the measures 
restrictive of trade that were passed simultaneously 
with its repeal, the tone gradually changed. " Our 
colonists cannot digest the hard measure they are 
dealt with in Parliament at home, when at the 
same time they think the sugar islands are greatly 
indidg'd to their prejudice. . . . The political 
views of the great, in measures in disfavour of the 
Colonyes, are to me impenetrable ; they may, for 
aught I can conceive, tend to very satisfactory 
ends, but they are considered here by the most 
judicious in a very different light, as the unhappy 
occasion of making very bad impressions on the 
minds of the people, and the laying a foimdation 
for much trouble, that will sooner or later be the 
inevitable consequence of too harsh usage. In my 
situation in life, the measures complained of can 
very inconsiderably affect me, and thus far they 
give me no concern, but nevertheless I can't help 
having a feeling for the great numbers who are 
likely to suffer by them." ^ The hard times that 
followed are noticed briefly : " The reasonableness 
of a general complaint of the difficult times in 
these Colonyes by the great restrictions lay'd on 
trade, etc., begins to manifest itself by frequent 

1 To David Peloquin, October 24, 1753. 

2 To same, May 7, 1765. 



YOUTH 5 

failures, and by a shocking general bad pay among 
the people ; " ^ and as the year advances to its 
close, the language becomes stronger, and the keen- 
eyed merchant begins to see pretty clearly the 
meaning of what is taking place. "The general 
and spirited resentment that prevails in the Col- 
onyes," he writes on November 25, 1765, "gives 
reason to expect that the enforcing the Stamp Act 
will be opposed at all events, and then England 
as well as the Colonyes may both have reason to 
curse the first promoters of it, who by this impoli- 
tick act have effectually united the several Colo- 
nyes into the strongest tyes of mutual interest 
and friendship, which political measures of former 
Ministrys, we always thought, tended to prevent."^ 

Peter Jay, then, was a sound Whig from the 
beginning, and his son naturally took the same in- 
dependent stand. When the final appeal to arms 
came, Peter Jay remained true to his Whig princi- 
ples, though no extremist. " God grant," he wrote 
to John in the spring of 1776, " that all attempts 
of the ministerial troops may be frustrated, and be 
the means of a happy reconciliation," ^ a curiously 
illogical wish, but one that reflected closely the 
Whig popular opinion of a few months earlier, and 
which was, even then, the wish of both father and 
son, and of a majority of the Congress. 

One letter more may be quoted, full of char- 
acter, and of character that did not die with the 

1 To David Peloquin, June 4, 1765. 2 Tq game. 

8 April 18, 1776, Jay MSS. 



6 JOHN JAY 

writer. It was written in 1771, to his son John, 
and is about a dispute with a neighbor, in itself 
unimportant : — 

" Dear Johnnt, — Your brother tells me Mr. Bay- 
ard and you have agreed about the road. The settle- 
ment of our lott never was an object to me, and had that 
gentleman condescended to ask me for a road as a mat- 
ter of favour he should have had it. His attempt to 
draw me into the measure by regard to my own interest, 
was a little piece of art which I was determined should 
not succeed. . . . Design is not his talent, he had better 
act with candor and openness. His threats of an Act of 
Assembly and an Application to the Corporation, were 
better calculated to excite ridicule than fear. I have 
nothing to ask or fear from any man, and will not be 
compelled into measures. The truth of his former pre- 
tences appears now from his consenting to pay so dearly 
for a road ; tell him he may have his land and a road 
too." 1 

Piety, independence, and a keen sense of jus- 
tice were natural birthrights in the Jay family; 
to these, several generations of successful business 
men had added the more worldly virtues of pru- 
dence and perseverance ; while from his father John 
Jay seems to have inherited a firmness of charac- 
ter which, in excess, would have been obstinacy, 
and a strength of feeling seldom suspected because 
united with unusual self-control. It is also notice- 
able that of Jay's great grandparents not one was 
English, three were French and five Dutch, so that 
1 To John Jay, 1771, Jay MSS. 



YOUTH 7 

he was one of the few men of the Revolution who 
could say, as he did in 1796, " Not being of British 
descent, I cannot be influenced by that tendency 
towards their national character, nor that partial- 
ity for it, which might otherwise be supposed to 
be not unnatural." This fact in itself, combined 
with the hatred of interference traditional among 
merchants, may have had no little influence in 
making John Jay a leader in the American Revo- 
lution without his ceasing to be, or rather because 
he was, a conservative. 

The year of his birth he was taken to Rye, and 
there his early childhood was passed in the old Jay 
house, which at that time was " a long low build- 
ing, but one room deep," extended, as the family 
increased, by some eighty feet in length.^ After 
surviving an attack of sore throat, of which a 
younger sister died, and escaping the dreaded 
small-pox that left his brother Peter and his sister 
Nancy totally blind, he was taught by his mother 
" the rudiments of English, and the Latin gram- 
mar." " Johnny is of a very grave disposition 
and takes to learning exceedingly well," wrote his 
father, when the boy was nearly seven years old ; 
" he will be soon fit to go to a grammar school ; " ^ 
and to a grammar school he accordingly went the 
next year. " My Johnny gives me a very pleasing 
prospect," wrote Mr. Jay again in the autumn ; 
" he seems to be endowed with a very good ca- 

1 Scharf , Hist, of Westchester Co. ii. 672. 

2 To James Jay, July 3, 1752. 



8 JOHN JAY 

pacity, is very reserved and quite of his brother 
James's disposition for books." ^ The school was 
kept by the Rev. Peter Stoope, the pastor of the 
French Huguenot church, then lately joined to the 
Episcopal communion, at New Rochelle. He was 
by birth a Swiss, an eccentric man, very absent- 
minded, and wholly devoted to mathematics, so 
that the parsonage was allowed to fall into decay, 
and the boys were haK-starved under the manage- 
ment of his wife, " who was as penurious as he 
was careless." To keep the snow off his bed in 
winter, John used to stuff the broken panes of his 
window with bits of wood. But the plain food 
agreed with him, his health was excellent, and he 
used to recall afterwards the pleasure he had in 
the woods picking nuts, which "he carried home 
in his stockings." French was spoken generally 
at the parsonage and by the people of the village, 
who were, as its name suggests, chiefly descend- 
ants of French refugees ; thus he easily and early 
learned the language that was to prove so useful 
to him. At New Rochelle he stayed for three 
years, when he was taken home to Rye, and pre- 
pared for college by a tutor, Mr. George Murray. 

Jay entered King's (now Columbia) College in 
1760, when he was but a little over fourteen years 
old. For admission he was required to read " the 
first three of Tully's orations, and the six first books 
of Virgil's ^neid into English, and the ten first 
chapters of St. John's Gospel into Latin," to be 

1 To Messrs. D. & L. Peloquin, October 24, 1753. 



YOUTH 9 

well versed in Latin grammar, and to be " expert 
in Arithmetick as far as Reduction." At that time 
the college was under its first president, the learned 
and pious Dr. Samuel Johnson, an old friend of 
Mr. Peter Jay, whose eldest son Augustus had 
studied reading and writing at the doctor's parson- 
age at Stratford. Dr. Johnson was a gentle, studi- 
ous man, who had been one of the first graduates 
of Yale College to desert Congregationalism for 
the Church of England. Single-handed at first, 
then with one and afterwards two assistants, he 
instructed the few students of King's College, and 
was just gaining some success, when he resigned 
on the death of his wife of the small-pox, which for 
some years had been epidemic in New York, and 
for fear of which he scarcely ever ventured out of 
doors.^ Young Jay early won his regard, and on 
Dr. Johnson's resignation in 1763 he learned from 
his father that the doctor wished to hear from him. 
" I would have you gratify him with a letter, which 
he has a right to expect from you, and, although I 
believe things go well in the college now," Mr. Jay 
suggested with characteristic caution, " yet I would 
not have you write more than may be communi- 
cated out of college." ^ The boy wrote accordingly, 
and the late president answered promptly, incident- 
ally showing how early, with its unfamiliar strains 
of wild romance, McPherson's bombastic Ossian 
charmed the fancy even in America : " I gave 

^ Baird, Life of Dr. Samuel Johnson. 
2 August, 1763, Jay MSS. 



10 JOHN JAY 

Brooks a much better and more correct copy of 
what I had added to Ossian's Address to the Sun 
than what you had before, from which I wish you 
and all of them would exactly transcribe for the 
future." 1 

Of Jay's college life little is known. During 
the first two years he lodged at the house of Law- 
rence Romer, a painter, at "the corner of Verlet- 
tenburgh Hill and Broadway," and the last two 
years he had rooms in the college. He set himself 
at once, of his own accord, to curing certain defects 
of utterance and rapid reading, and he made an 
enthusiastic study of English composition, a study 
that bore fruit in the graceful and easy, but at the 
same time often laconic, style for which he was 
noted, and which in the first Continental Congress 
at once placed him in " the little aristocracy of 
talents and letters " with William Livingston and 
Dickinson.^ "My son John has now been two 
years at college," wrote Mr. Jay in 1765, " where 
he prosecutes his studyes to satisfaction. He is 
indued with very good natural parts, and is bent 
upon a learned profession. I believe it will be the 
law." ^ In his last year at college, Jay, then " a 
youth remarkably sedate and well-disposed," * as 
his father called him, determined on the law as his 
profession, and is said to have begun his prepara- 

1 From Rev. Dr. S. Johnson, October 27, 1763, Jay MSS. 

2 John Adams's Works, x. 79. 
8 Ibid., April 14, 1763. 

* To David Peloquin, Letter Book, May 16, 1763. 



YOUTH 11 

tion for it by carefully reading through Grotius 
" De Jure Belli et Pacis," and its discussion of 
international law and so-called natural rights may 
have seemed to have a bearing on the perplexing 
and pressing problems of the day. His decision to 
study law was apparently the result of thought and 
deliberation, as Mr. Jay wrote to him on hearing 
of it : " Your observations on the study of the law 
I believe are very just, and as it 's your inclination 
to be of that profession, I hope you '11 closely at- 
tend to it, with a firm resolution that no difficulties 
in prosecuting that study shall discourage you from 
applying very close to it, and, if possible, from 
taking a delight in it." ^ 

In 1783 Dr. Johnson was succeeded as presi- 
dent by Dr. Myles Cooper, " a wit and a scholar," 
said Verplanck, " whose learning and accomplish- 
ments gave him personal popularity and respect 
with his pupils, and of course added authority to 
his opinions, and those were the opinions and pre- 
judices of the high-toned English University Tory 
of the last century." ^ Twelve years later, to es- 
cape a mob, this good gentleman was forced to leap 
over the college fence with an undignified precipi- 
tation little befitting a poet and a Fellow of Ox- 
ford, and he sailed forthwith for England ; but at 
this earlier time he was not unpopular, and he was 
always spoken of respectfully by Jay, who might 

1 August 23, 1763, Jay MSS. 

^ Gulian Verplanck, Address before College Societies, August 2, 
1830. 



12 JOHN JAY 

naturally have resented what he then deemed a 
most unjust punishment in the following matter. 
One day a number of students in the College Hall 
began to break the table, — such at least is the 
traditional description of their nefarious enter- 
prise. The president heard the noise, went in, and 
asked one student after another, " Did you break 
the table ? " " Do you know who did ? " All an- 
swered " No," until he came to Jay, who was the 
last but one. To the first question Jay answered 
like the others ; to the second question, " Yes, sir." 
"Who was it?" asked Dr. Cooper. "I do not 
choose to tell you, sir," was the sturdy reply ; and 
the next and last boy answered as Jay did. These 
two were called before the professors, when Jay 
argued ingeniously and reasonably enough that, 
as information against fellow students was not re- 
quired by the college statutes, they were not tech- 
nically guilty of disobedience in not informing; 
but the professors were unconvinced, and Jay was 
rusticated only a short time before he was to grad- 
uate. His term of suspension over, he returned to 
coUege, and at the Commencement held in May, 
1764, in the presence of General Gage, his ma- 
jesty's council, and other notables, delivered a dis- 
sertation on the blessings of peace, and received 
his bachelor's degree. 

Two weeks after leaving coUege, Jay entered, as 
a student, the office of Benjamin Kissam, a barris- 
ter " eminent in the profession," ^ binding himself 
1 Letter Book, May 15, 1764. 



YOUTH 13 

an apprentice, on the payment of X200, to serve 
for five years, with liberty to apply the last two 
years to the study of the law, and to visit the ses- 
sions with only occasional attendance then at the 
office. This arrangement was a happy ending of 
much anxiety on the part of Mr. Peter Jay, for the 
lawyers of New York had a few years before made 
an agreement to take no one as clerk who proposed 
to enter the profession, and a new and more lib- 
eral agreement " under such restrictions," however, 
" as will greatly impede the lower class of the peo- 
ple from creeping in," ^ was made only in time to 
prevent Jay from starting for England to get a 
professional education there. 

" The office duties of clerks at that period," ac- 
cording to Peter Van Schaack, who three years 
later was studying under William Smith of the 
same bar, " were immensely laborious ; everything 
was written, and the drudgery of copying was 
oppressive. Printed blank forms, which are now 
used by the profession with so much economy of 
time and labor, were then unknown. Even the 
argument of questions of law before the Supreme 
Court was conducted in writing." ^ The law books 
of the time were the ponderous tomes of reports 
and digests that preceded Blackstone's Commen- 
taries, which did not reach America till the third 
year of Jay's apprenticeship. In this drudgery 

1 Letter Book, May 15, 1764. 

2 Life of Peter Van Schaack, by Henry Van Schaack, pp. 
6,7. 



14 JOHN JAY 

Jay had as companion for a while Lindley Mur- 
ray, afterwards the famous grammarian, who was 
soon struck by the unusual qualities of his fellow 
student, qualities which, as he then noted them, 
were characteristic of Jay throughout a long life. 
" He was remarkable," said Murray, " for strong 
reasoning powers, comprehensive \dews, indefatiga- 
ble application, and uncommon firmness of mind." ^ 
With Mr. Kissam, Jay, though very young and 
only a clerk, was before long on terms of intimacy. 
Many years afterwards, he had the pleasure of in- 
troducing Kissam's son to John Adams, with the 
remark that the father was " one of the best men 
I have ever known, as well as one of the best 
friends I have ever had." ^ 

In the sixties the must of the Revolution was 
already fermenting, but politics were apparently 
ignored by both master and clerk except so far 
as concerned their legal business. In April, 1766, 
Mr. Kissam proposes going " on a jaunt " to Phil- 
adelphia, if the news of the repeal of the Stamp 
Act does not arrive in the mean time ; for as, he 
writes, " on the Repeal of the Stamp Act we shall 
doubtless have a luxuriant harvest of law, I would 
not willingly, after the long famine we have had, 
miss reaping my part of the harvest. ... As soon 
as it reaches you, I beg you '11 come down, and be 
ready to receive all business that offers." ^ Kis- 

^ Autobiography of Lindley Murray. 

2 To John Adams, February 16, 1788, Jay MS& 

8 To John Jay, April 25, 1766, Jay MSS. 



YOUTH 15 

sam, while absent, wrote to ask about the con- 
duct of the office, and Jay replied in a letter that 
was, as he expressed it, " free enough in all con- 
science : " " If by wanting to know how matters go 
on in the office, you intend I shall tell you how 
often your clerks go into it, give me leave to re- 
mind you of the old law maxim, that a man's own 
evidence is not to be admitted in his own cause. 
Why ? Because 't is ten to one he does violence 
to his conscience. If I should tell you that I 
am aU the day in your office, and as attentive to 
your interest as I would be to my own, I suspect 
you would think it such an impeachment of my 
modesty as would not operate very powerfully in 
favor of my veracity. And if, on the other hand, 
I should tell you that I make hay while the sun 
shines, and say unto my soul, ' Soul, take thy rest, 
thy lord is journeying in a far country,' I should 
be much mistaken if you did not think that the 
confession looked too honest to be true." ^ The 
fun of a lawyer of twenty-one in 1766 does not, 
perhaps, bear quoting, but it shows the familiar, 
pleasant relationship he had already established 
with his " master," and the boyish gayety that was 
so soon, perforce, concealed by an acquired or nat- 
ural gravity. It was about this time, too, that Jay 
by a diplomatic, though not insincere, reply got 
his father's leave to keep a horse. " John, why do 
you want a horse ?" " That I may have the means, 
sir, of visiting you frequently." The fact was that 

^ Jay, Jjife of John Jay, i. 18. 



16 JOHN JAY 

then, as in after years, Jay suffered from ill health, 
especially from dyspepsia, and found his best med- 
icine in regular exercise. 

In 1768 he was admitted to the bar, and became 
almost immediately successful, forming at first a 
temporary partnership with Eobert K. Livingston, 
afterwards chancellor of the State and secretary 
for foreign affairs. Benjamin Kissam, when un- 
able to attend to his own business, would often ask 
Jay to act for him, and a letter of his shows the 
nature of the cases : " One is about a horse race, 
in which I suppose there is some cheat ; another is 
about an eloped wife ; another of them also apper- 
tains unto horse flesh. . . . There is also one writ 
of Inquiry." 

The practice of a country lawyer to-day could 
scarcely be less interesting. Indeed, before the 
Revolution, so far as can be gathered, the chief 
law business, even in New York, consisted in suing 
out writs of ejectment, and in collecting debts due 
to English merchants. It was seldom that a case 
arose like that of Zwengler, involving principles of 
constitutional law, and establishing the reputation 
of the victorious counsel. One cause only of some 
consequence is mentioned, in which Jay was en- 
gaged, that of a contested election in Westchester 
Coimty, in which the right of suffrage was dis- 
cussed, and questions of evidence of more than 
usual intricacy arose. On this occasion Jay was 
opposed by his friend Gouverneur Morris. In 
1770 Jay speaks of going to Fairfield to try two 



YOUTH 17 

causes ; ^ and in 1774 he is addressing a jury at 
Albany. His practice, then, was varied, though he 
was engaged in no great cases, and was at no time 
noted for brilliant or " magnetic " oratory. In 
after years his " quiet, limpid style, without ges- 
ture," attracted the attention of the younger Ham- 
ilton during the great debates on the ratification 
of the Constitution in the New York Convention, 
and, as a young lawyer, he must have been unus- 
ually clear-headed and tactful. "All the causes 
you have hitherto tried," wrote Kissam in 1769, 
" have been by a kind of inspiration." ^ These 
two still continued great friends, though sometimes 
engaged on opposite sides. On one such occasion 
Kissam, in a moment of embarrassment, complained 
that he had brought up a bird to peck out his own 
eyes. " Oh, no," retorted Jay, " not to peck out 
but to open your eyes." 

In November, 1770, a number of lawyers in New 
York formed "The Moot," a club that met the 
first Friday of every month for the discussion of 
disputed points of law. Jay was one of the younger 
members, together with his college friends, Egbert 
Benson, in due time judge of the New York Su- 
preme Court ; Robert R. Livingston, Jr. ; James 
Duane, Jay's colleague in the Continental Congress, 
and first mayor of New York after the Revolution ; 
Gouverneur Morris, as yet without that wooden leg 
which he brandished with such happy effect in the 

1 To Dr. Kissam, March 1, 1770, Jay MSS. 

2 From Benjamin Kissam, November 6, 1769, Jay MSS. 



18 JOHN JAY 

face of a Paris mob; and Peter Van Schaack, 
whom Jay was to exile from the State, but who 
loved him to the end, and wrote an epitaph on him ; 
while among the older lawyers, who attended occa- 
sionally, were William Smith, who later became 
chief justice of Canada, after having been confined 
in Livingston Manor, and banished as a Tory sym- 
pathizer ; Samuel Jones, the chief justice, whose 
office was to be the training school of De Witt 
Clinton ; John Morin Scott, the popular orator 
of the Liberty Boys, lawyer, patriot, and general ; 
William Livingston, and Benjamin Kissam. The 
decision of the club on a matter of practice is said 
to have been followed by the Superior Court ; and 
its sessions must have been invaluable to the 
younger members. Party politics of the province 
were a forbidden topic at the meetings, which were 
long remembered with delight ; " a recollection," 
wrote Van Schaack to Jay before many years had 
passed, " of those happy scenes, of our clubs, our 
moots, and our Broadway evenings, fills me with 
pleasing melancholy reflections, — fuimus TroeSy 
fuit Ilium.^^ ^ 

In the mean time the young lawyer's practice 
steadily increased, and in the autumn of 1771 he 
was able to write to Dr. Samuel Kissam, a college 
friend in business at Surinam : " With respect to 
business I am as well circumstanced as I have a 
right to expect ; my old friends contribute much to 
my happiness, and upon the whole I have reason 

^ Life of Peter Van Schaack, p. 100. 



YOUTH 19 

to be satisfied with my share of the attention of 
Providence." ^ Not many lawyers of twenty-six 
can say so much to-day. Two years later his of- 
ficial or public life began with his appointment, 
February 17, 1773, as secretary to the royal 
commission to determine the disputed boundary 
between New York and Connecticut. The follow- 
ing year, April 28, 1774, at patriotically named 
" Liberty Hall," Elizabeth, New Jersey, he mar- 
ried " the beautiful Sarah Livingston," the young- 
est daughter of William Livingston, soon to be the 
famous Revolutionary governor of New Jersey, and 
already well known for countless literary and po- 
litical poems, letters, and essays. In the notices 
of the wedding, Jay, young as he was, could be 
described as " an eminent barrister," ^ — the same 
phrase that was applied to him a month or two 
later by Lieutenant-Governor Golden. 

With this spring closes the first third of Jay's 
life, of which, as curiously happened, the second 
third of twenty-eight years was spent wholly in the 
public service, and the last third wholly in retire- 
ment. So far as can be gathered from the meagre 
records extant, his twenty-ninth year found him a 
studious, quiet lawyer, devoted to his profession 
and but little excited by the politics of the day. 
As a boy he was not precocious ; no brilliant- 
winged creature like Hamilton, but a lad " re- 
markably sedate." His college life won him no 

1 Augnst 27, 1771, Jay MSS. 

2 New York Gazette, May 9, 1774. 



20 JOHN JAY 

sudden reputation like that of so many English 
statesmen from Pitt to Gladstone, but it did win 
him the love and esteem of many friends that con- 
tinued tiU his death. Carefully and well nurtured, - 
in the comfortable society of honorable relations 
and friends, occupied in the profession of his 
choice, successful in the love of his heart, he was 
now a slender, graceful man, with refined, hand- 
some, serious face ; whose slowly matured charac- 
ter had ripened to well-balanced wisdom uncon- 
sciously and apparently unsuspected. By family 
traditions he was independent of England, and a 
Whig ; and now by marriage he was connected 
with the great Whig family of Livingston, which 
had for generations contested the province with 
the Tory De Lanceys. 



CHAPTER II 

CONSERVATIVE WHIG LEADER 

1774-1776 

" Throughout America the constitutions fa- 
vored individuality. Under the careless rule of 
Great Britain, habits of personal liberty had taken 
root, which showed themselves in the tenacity 
wherewith the people clung to their habits of self- 
government ; and so long as those usages were re- 
spected, under which they had always lived, and 
which they believed to be as well established as 
Magna Charta, there were not in aU the king's 
dominions more loyal subjects than Washington, 
Jefferson, and Jay." ^ In 1773 Jay was as loyal 
as any man " in aU the king's dominions ; " in 
1776, as chairman of a secret committee, he was 
punishing with imprisonment and exile many men 
whose only crime was retaining the opinions he 
himself had held three years before. Yet, in the 
mean while. Jay's principles of conduct and his 
mental attitude were unchanged. How such could 
be the case is worth inquiry ; especially as Jay, 
rather than impulsive men like Adams, or quick- 

1 Brooks Adams, The Emancipation of Massachusetts, pp. 316, 
317. 



22 JOHN JAY 

witted men like Hamilton, was typical of the gen- 
eration that fought the Revolution. 

In 1773 the tax on tea was imposed. On Oc- 
tober 22 the Mohawks of New York, a band of 
the Sons of Liberty, were ordered by their old 
leaders to be on the watch for the tea-ships ; ^ and 
it was merely the chances of time and tide that 
gave the opportunity of fame first to the Mohawks 
of Boston. December 15, soon after the Boston 
tea-party, there was revived the old organization 
of the Sons of Liberty, which had first been 
formed to put down the Stamp Act, holding to- 
gether after the repeal of that measure to oppose 
such acts of Parliament as the Mutiny Bill, and 
which, as late as 1770, established a committee to 
enforce non-importation.^ An " association " was 
now circulated for signatures, engaging to boycott, 
" not deal with, or employ, or have any connection 
with," any persons who should aid in landing, or 
" selling, or buying tea, so long as it is subject 
to a duty by Parliament ; " ^ and December 17 a 
meeting of the subscribers was held, and a com- 
mittee of fifteen chosen as a Committee of Corre- 
spondence that was soon known as the Vigilance 
Committee. Letters also were exchanged between 
the speakers of many of the houses of assembly in 
the different provinces ; and January 20, 1774, the 
New York Assembly, which had been out of touch 

^ Leake, Life of John Lamb, p. 76. 

2 Ibid. pp. 2, 69. 

8 New York Journal, December 16, 1773. 



CONSERVATIVE WHIG LEADER 23 

with the people ever since the Stamp Act was 
passed in the year after its election, appointed 
their speaker, with twelve others, a standing Com- 
mittee of Correspondence and Enquiry, a proof 
that the interest of all classes was now excited. 
April 15 the Nancy with a cargo of tea arrived 
off Sandy Hook, followed shortly by the London. 
The Committee of Vigilance assembled, and as 
soon as Captain Lockyier of the Nancy landed in 
spite of their warning, escorted him to a pilot boat 
and set him on board again, while the flag flew 
from the liberty pole, and cannon thundered from 
the "Fields." April 23 the Nancy stood out to sea 
without landing her cargo, and with her carried 
Captain Chambers of the London, from which the 
evening before eighteen chests of tea had been 
emptied into the sea by the Liberty Boys.^ 

The bill closing the port of Boston was enacted 
March 31, and a copy of the act reached New 
York by the ship Samson on the 12th. Two days 
later the Committee of Vigilance wrote to the Bos- 
ton committee recommending vigorous measures as 
the most effectual, and assuring them that their 
course would be heartily supported by their bre- 
thren in New York.^ So rapid had been the march 
of events that not till now did the merchants 
and responsible citizens of New York take alarm. 
Without their concurrence or even knowledge they 
were being rapidly compromised by the unauthor- 

^ Leake, Life of John Lamb, pp. 81-84. 
2 Ibid. p. 87. 



24 JOHN JAY 

ized action of an irresponsible committee, composed 
of men who for the most part were noted more for 
enthusiasm than judgment, and many of whom had 
been not unconcerned in petty riots and demon- 
strations condemned by the better part of the com- 
munity. The one weapon in which the Sons of 
Liberty trusted was " Non-importation," a prohibi- 
tion of trade with England, and this was a measure 
which injured the merchants of New York more 
than any others, and had been abandoned in 1770 
as a failure. " The men who at that time called 
themselves the Committee," wrote Lieutenant-Gov- 
ernor Golden the next month, " who dictated and 
acted in the name of the people, were many of them 
of the lower ranks, and all the warmest zealots of 
those called the Sons of Liberty. The more con- 
siderable merchants and citizens seldom or never 
appeared among them. . . . The principal inhabit- 
ants, being now afraid that these hot-headed men 
might now run the city into dangerous measures, 
appeared in a considerable body at the first meet- 
ing of the people after the Boston Port Act was 
published here." ^ This meeting, convoked by 
advertisement, was held May 16, at the house of 
Samuel Francis, " to considt on the measures pro- 
per to be pursued." It was proposed to nominate 
a new committee to supersede the Gommittee of 
Vigilance, authorized to represent the citizens. A 
committee of fifty. Jay among them, instead of one 
of twenty-five as at first suggested, was nominated 

^ Am. Archives, 4th Series, i. 372. 



CONSERVATIVE WHIG LEADER 25 

"for the approbation of the public," "to corre- 
spond with our sister colonies on all matters of mo- 
ment." Three days later these nominations were 
confirmed by a public meeting held at the Cof- 
fee House, but not until a fifty-first member was 
added, Francis Lewis, as a representative of the 
radical party, which had been as much as possible 
ignored. The chagrin of the Sons of Liberty at 
the conservative composition of the committee was 
intensified by the exultation, unfoimded though it 
proved, of the Tories. " You may rest assured," 
wrote Rivington, the editor of the Tory newspaper, 
to Knox, then a bookseller in Boston and after- 
wards secretary for war, " no non-im- nor non-ex- 
portation will be agreed upon, either here or at 
Philadelphia. The power over our crowd is no 
longer in the hands of Sears, Lamb, and such 
unimportant persons who have for six years past 
been the demagogues of a very turbulent faction 
in this city ; but their power and mischievous ca- 
pacity expired instantly upon the election of the 
Committee of Fifty-one, in which there is a ma- 
jority of inflexibly honest, loyal, and prudent 
citizens." 

At the Coffee House again, on May 23, the 
Committee of Fifty-one met and organized; they 
repudiated the letter to Boston from the Commit- 
tee of Vigilance as unofficial ; ^ a letter from Phila- 
delphia was read ; Paul Revere, the " express " or 
confidential messenger from Boston, attended with 
1 Leake, Life of John Lamb, p. 88. 



26 JOHN JAY 

a letter dated May 13, requesting concurrence with 
the resolves of the Boston town meeting of that 
day ordering non-importation from Great Britain 
and discontinuance of trade with the West India 
Islands; and McDougall, Low, Duane, and Jay 
were appointed a sub-committee to report the same 
evening a draft of an answer to this last. The 
draft, as reported, is believed to be by Jay. It 
urged that " a Congress of deputies from the colo- 
nies in general is of the utmost moment," to form 
"some unanimous resolutions . . . not only re- 
specting your [Boston's] deplorable circumstances, 
but for the security of our common rights ; " and 
that the advisability of a non-importation agree- 
ment should be left to the Congress. This report 
was unanimously agreed to ; a copy was delivered 
to Paul Revere, and another copy to a messenger 
for Philadelphia.^ The importance of this letter 
can hardly be exaggerated, for it was the first seri- 
ous authoritative suggestion of a general congress 
to consider "the common rights" of the colonies 
in general. The people of Boston in the indigna- 
tion of the moment were preoccupied wholly with 
their private local wrongs, for which they were 
ready to involve the continent in a war of com- 
mercial restrictions. The Sons of Liberty in New 
York and elsewhere were equally incapable of any 
broader views. The resolutions about the same 
date, some a day or two earlier, some a day or two 

1 New York Journal, May 26, 1774. In Leake's Life of Lamb, 
p. 88, the date of this meeting is erroneously gfiven as May 26. 



CONSERVATIVE WHIG LEADER 27 

later, of meetings in Providence and Philadelphia, 
and of the Burgesses of Virginia, were all deficient 
either in being unofficial or as limiting the object 
of the congress to the quarrel of Boston.^ It was 
the conservative merchants of New York alone who 
were at the time calm, clear-headed, and far-sighted 
enough to urge the postponement of violent mea- 
sures, which would then almost certainly have been 
only sporadic and abortive, to the discretion of a 
congress concerned with the welfare of all. The 
advice of New York was followed gradually by the 
other colonies ; but even before a Continental Con- 
gress was a certainty, the Committee of Fifty-one, 
with singular confidence, resolved that delegates to 
it should be chosen, and called a meeting for that 
purpose for July 19. 

Meantime the Committee of Vigilance was dying 
hard. It still tried to enforce the Boston resolu- 
tions by a system of espionage and threats. The 

^ " The first, or one of the first, to claim that the particular 
grievances of Boston were not the only ones to be considered — 
though the committee of Philadelphia, in the letter forwarded 
with this to Boston, had adopted somewhat the same tone — and 
the first to propose a convention of all the colonies to take con- 
certed action on all their grievances ; for the recommendation of 
the town of Providence, May 17, only requested their delegates 
in the approaching General Assembly to use their efforts to that 
end, and the comm^ittee of Philadelphia, May 21, merely men- 
tioned the suggestion without urging it." The Committee of 
Correspondence of Connecticut concurred with the New York re- 
commendation, June 4 ; the General Assembly of Rhode Island, 
June 15 ; the General Court of Massachusetts, June 17 ; and Phila- 
delphia at a meeting of the citizens, Jime 18. Dawson, West- 
chester Co. during the Revolution, p. 18. 



28 JOHN JAY 

chairman of a committee of merchants complained 
to the Fifty-one of these persons inquiring " into 
their private business," and the Fifty-one promptly 
denounced them. This was more than Lamb, the 
leader of the old committee, could stand. In the 
words of his biographer : " Satisfied of the inten- 
tions of the Fifty-one to paralyze the energies of 
the people, . . . they resolved to frustrate their 
designs," ^ and by an unsigned advertisement 
called for the evening of July 6 what was after- 
wards known as the " Great meeting in the Fields," 
now City HaU Park. Alexander McDougaU pre- 
sided, and strong resolutions were passed and 
pledges made in favor of non-importation. These 
proceedings were promptly disavowed the next day 
by the regular committee as " evidently calculated 
... to excite groundless . . . suspicions, ... as 
well as disunion among our fellow citizens ; " and 
a sub-committee on resolutions was chosen, — Low, 
Lewis, Moore, Sears, Kemsen, Shaw, McDougaU. 
McDougaU and others refusing to attend, a new 
committee was appointed, July 13, — Low, Jay, 
Thurman, Curtenius, Moore, Shaw, and Bache, who 
reported resolutions : " That it is our greatest Hap- 
piness and Glory to have been born British Sub- 
jects, and that we wish nothing more ardently than 
to live and die as such ; " that " the Act for Block- 
ing up the port of Boston is . . . subversive of 
every idea of British Liberty ; " and that it should 
be left to the proposed congress to determine the 

^ Leake, Life of Lamb, p. 92. 



CONSERVATIVE WHIG LEADER 29 

question of non-importation, which would be justi- 
fied only by " dire necessity." ^ 

The resolutions were adopted, and Philip Liv- 
ingston, John Alsop, Isaac Low, James Duane, 
and John Jay were nominated as delegates to be 
submitted to the public meeting July 19. The 
people met accordingly at the Coffee House, and 
after a stormy debate elected the committee's can- 
didates in spite of a strong effort to substitute for 
Jay, McDougall, the hero of the Liberty Boys 
since his imprisonment in 1769 for libel on the 
Tory Assembly. But they rejected the proposed 
resolutions, which had been violently denounced 
by Lamb, that brave but turbulent spirit, for hu- 
mility, ambiguity, inconsistency, and aversion to 
non-importation. Jay, with fourteen others, was 
directed to draft amendments. On motion of Jay, 
too, a committee was appointed to relieve the dis- 
tress of Boston. The next day Livingston, Alsop, 
Low, and Jay refused to accept their election, on 
the grounds that the meeting was not representa- 
tive, and that they agreed in the main with the re- 
jected resolutions, so determined were they, even 
in such quasi-revolutionary proceedings, that no- 
thing should be done except decently and in order. 
It is known that the popular party wished to have 
the nominations referred for approval to the Com- 
mittee of Mechanics, a trade organization which 
now, like every other, began to take part in poli- 
tics, and which professed to represent, and to some 

1 New York Journal, July 14, 1774. 



30 JOHN JAY 

extent was the sole representative of, the unen- 
franchised and, as ever in times of excitement and 
in cities, extremely radical masses ; while the ma- 
jority of the Committee of Fifty-one wished the 
nominations submitted to the freeholders and free- 
men, as at ordinary elections.^ A compromise was 
happily effected. Polls were ordered by the com- 
mittee to be opened July 28 for the election of 
delegates in each ward under the superintendency 
of the aldermen and members of the Committee of 
Fifty-one and of the Mechanics' Committee.^ In 
answer to letters from the latter, the candidates 
stated that they believed at the moment in the pro- 
priety of non-importation, but were determined to 
hold themselves free to act, if elected, as should 
seem best in the Congress. In this concession the 
mechanics, meeting at the house of Mr. Mariner, 
acquiesced.^ At the election Jay and his colleagues 
received a unanimous vote. 

Thus, fortunately, at the very inception of the 
Revolution, before the faintest clatter of arms, 
the popular movement was placed in charge of the 
Patricians^ as they were called, rather than of the 
Tribunes, as respectively represented by Jay and 
McDougall. " The former were composed of the 
merchants and gentry, and the latter mostly of 
mechanics. The latter were radicals, and the for- 
mer joined with the loyalists in attempts to check 

1 Leake, Life of Lamb, p. 94, 

2 Rivington's Gazette, July 28, 1774. 

3 New York Journal, August 4, 1774. 



CONSERVATIVE WHIG LEADER 31 

the influences of the zealous democrats." ^ At the 
meeting on May 19, which ratified the election of 
the Committee of Fifty-one, Gouverneur Morris 
was present, and remarked with uneasiness the suc- 
cessful attempt of the minority to control the more 
numerous but less skillful party, for at the moment 
a reaction seemed imminent ; and the next day he 
wrote with some bitterness : " I see, and I see it 
with fear and trembling, that if the disputes with 
Britain continue, we shall be under the worst of all 
possible dominions. We shall be under the domi- 
nation of a riotous mob." ^ As it happened, the 
Tribunes succeeded in modifying to suit them- 
selves the resolutions adopted, and the Patricians 
succeeded in sending the delegates of their choice 
unpledged to the Congress. 

On Monday, August 29, Jay set off for Phila- 
delphia alone, and without announcing his depar- 
ture, though he joined his father-in-law, William 
Livingston, at Elizabeth, thus avoiding the compli- 
mentary farewell with which the people speeded his 
fellow delegates. " Mr. Jay is a young gentleman 
of the law, of about twenty-six [in fact, twenty- 
nine], Mr. Scott says, a hard student and a good 
speaker," is the entry in the diary of John Adams, 
jotted down a few days earlier, as he, too, was rid- 
ing on to Philadelphia.^ 

1 Lossing, Hiet. of N. Y. City, i. 32. 

2 Gouverneur Morria to Perm, May 20, 1774, Sparks, G. Morris, 
1.25. 

8 John Adams's Works, ii. 350. 



32 JOHN JAY 

There the Congress met at Carpenters' Hall, on 
September 5, and the delegates sat steadily day 
after day, for six weeks, from eleven till four 
o'clock.^ Here for the first time were gathered to- 
gether from the different colonies representative 
men of every shade of opinion, whose reputations 
and very names were as yet for the most part un- 
known to one another. " To draw the character 
of all of them," wrote John Adams after the lapse 
of half a century, " would require a volume, and 
would now be considered a caricature print, — one 
part blind Tories, another Whigs, and the rest 
mongrels." ^ It was natural enough that such 
should be the case, for the Congress was not a revo- 
lutionary body in the sense in which the phrase 
could be applied to the provincial congresses and 
conventions of the next few years. In its origin 
and organization it usurped no illegal authority, 
but was a purely consultative assembly, like those 
that had met occasionally in times of emergency 
earlier in the century. " The powers of Congress 
at first were indeed little more than advisory," said 
Judge IredeU of the United States Supreme Court ; 
" but, in proportion as the danger increased, their 
powers were gradually enlarged." ^ So great was 
Jay's sense of the diversity of opinion that, when it 
was moved to open the first meeting with prayer, 
he objected, though as devout a man as any pre- 

^ Sparks, Gouverneur Morris, i. 217. 
2 John Adams's Works, x. 78, 79. 
8 3DaU. 91. 



CONSERVATIVE WHIG LEADER 33 

sent, " because," said Adams, " we were so divided 
in religious sentiments." ^ Still, in spite of this 
caution, a chaplain was appointed, whose prayers, 
though he afterwards joined the royalists, excited 
no dissension. 

The first regular business of Congress was to 
appoint a committee "to state the rights of the 
colonies in general." Jay was a member of the 
committee, and, when a debate arose on the source 
of the rights of the colonies, he stated the views 
that finally prevailed. " It is necessary," he said, 
" to recur to the law of nature and the British Con- 
stitution to ascertain our rights. The ' Constitu- 
tion ' of Great Britain will not apply to some of 
the charter rights." ^ In this reference to " the 
law of nature " may be detected a suggestion of 
revolutionary methods, which at the moment was 
doubtless not traced to its logical conclusion. The 
discussion, on the contrary, was practical rather 
than theoretical, and " the great state papers of 
American liberty," of which Jay wrote so many, 
" were all predicated on the abuse of chartered, not 
of abstract rights."^ This was indeed the chief 
distinction between the beginnings of the American 
and the French revolutions, and was one cause, 
and not the least efficient, for the permanent re- 
sults of the first. 

^ John Adams's Works, x. 79. 
2 Ibid. ii. 370. 

^ Gibbs, History of the Administrations of Washington and 
Adams, i. 8. 



34 JOHN JAY 

The question of voting in Congress had next to 
be determined. Patrick Henry, urging voting by 
delegates without regard to the State as a unit, 
made the famous speech in which he declared, " I 
am not a Virginian, but an American. ... I go 
upon the supposition that government is at an end. 
All distinctions are thrown down. All America is 
thrown into one mass." " Could I suppose," Jay 
replied, "that we came to frame an American con- 
stitution, instead of endeavoring to correct the 
faults in an old one, I can't yet think that all gov- 
ernment is at an end. The measure of arbitrary 
power is not yet full, and I think it must run over^ 
before vje undertake to frame a new constitution.^^ ^ 
In this last sentence is found the principle of Jay's 
conduct throughout the early Revolutionary period, 
before the Declaration of Independence. It was 
at once the path of duty and of prudence ; for only 
in this way could the people be compelled by the 
logic of facts as well as of argument into something 
like unanimity. In the matter of voting. Jay's 
party prevailed, and it was decided that each 
colony should have one vote, but that this decision 
should not be made a precedent. When the dis- 
cussion arose which ended in the adoption of the 
non-importation resolution on September 27, Jay 
also expressed the opinion of the majority, unwisely 
according to nineteenth century notions of politi- 
cal economy, but most wisely in the light of those 
days and in the political emergency of the moment. 
1 John Adams's Works, ii. 367, 368. 



CONSERVATIVE WHIG LEADER 35 

" Negotiation, suspension of commerce, and war," 
he said, " are the only three things. War is, by- 
general consent, to be waived at present. I am for 
negotiation and suspension of commerce." ^ On 
September 28 a motion was introduced that proved 
the extreme conservatism of the Congress. Jo- 
seph Galloway of Pennsylvania made a proposi- 
tion which Adams condensed as follows : " The 
plan, two classes of laws : 1. Laws of internal 
policy. 2. Laws in which more than one colony is 
concerned — raising money for war. No one act 
can be done without the assent of Great Britain. 
No one without the assent of America. A British- 
American legislature." In other words, all affairs 
in which more than one colony was interested, or 
which affected Great Britain and the colonies, were 
to be regulated by a president general appointed 
by the crown, and by a grand council of delegates 
from the various assemblies. The motion was de- 
feated only by vote of six colonies to five, though 
it was afterwards ordered expunged from the min- 
utes ; but Jay spoke for it. " I am led to adopt 
this plan," he said. " It is objected that this plan 
will alter our constitution, and therefore cannot 
be adopted without consulting constituents. Does 
this plan give up any one liberty, or interfere with 
any one right ? " ^ 

Jay was then placed on a committee to draft an 
address to the people of Great Britain, and a me- 

1 John Adams's Works, ii. 385. 

2 Ibid. u. 389. 



36 JOHN JAY 

morial to the people of Britisli America ; and the 
former was assigned to him. The keynote of the 
address was : " We consider ourselves, and do in- 
sist that we are and ought to be, as free as our 
fellow subjects in Britain, and that no power on 
earth has a right to take our property from us 
without our consent. . . . You have been told that 
we are seditious, impatient of government, and 
desirous of independence. Be assured that these 
are not facts, but calumnies. . . . Place us in the 
same situation that we were at the close of the last 
war [1763], and our former harmony will be re- 
stored." Jay shut himself up in a room in a tav- 
ern to write the address. It was at once reported 
favorably by the committee and adopted by Con- 
gress, and Jefferson, while still ignorant of the 
authorship, declared it " a production certainly of 
the finest pen in America." ^ After a session of 
some six weeks, Congress dissolved, recommending 
the appointment of local committees to carry out 
the non-importation association. 

The action of the Congress won popular favor, 
and the New York delegates on their return were 
presented by their former critics, the Committee 
of Mechanics, with an address acknowledging their 
" readiness in accepting and fidelity in executing 
the high and important trust " reposed in them ; 
and in their answer the delegates showed them- 
selves equally free from partisanship : " Let us all, 
with one heart and voice, endeavor to cultivate and 
^ Jefferson's Writings, i. 8. 



CONSERVATIVE WHIG LEADER 37 

cherish a spirit of unanimity and mutual benevo- 
lence, and to promote that internal tranquillity 
which can alone give weight to our laudable ef- 
forts for the preservation of our freedom, and 
crown them with success." ^ Jay was at once 
elected one of a committee of sixty, called a Com- 
mittee of Inspection, that superseded the old Com- 
mittee of Fifty-one, and that was specially charged 
with promoting non-importation. It is not surpris- 
ing that in this familiar business the Committee of 
Mechanics cooperated heartily.^ The committee 
for the relief of Boston, of which Jay was also a 
member, was likewise not unoccupied. On one 
day, December 23, for instance, they received 
"for Boston, from the people of Hanover, twelve 
barrels of fine, eight of common, and five of cornel 
flour, and £11 lis. in cash, and from the precinct 
of Shengonk, thirteen barrels of flour and three of 
corn." ^ The Committee of Inspection was vari- 
ously engaged, searching ships for imported goods, 
examining captains and boatmen, selling confis- 
cated property at public vendue, warning the 
people of, for instance, the scarcity of nails, and 
recommending that none should be exported, or 
contradicting false statements published by the 
loyalist editor, Rivington.* 

The time now came for the election of delegates 

1 Jay MSS. 

2 Leake, Life of John Lamb, p. 95. 

3 New York Journal, December 29, 1774. 
* Ibid. March 23, April 13, 1775. 



38 JOHN JAY 

to the second Continental Congress, which was to 
meet May 10, 1775. The Committee of Inspec- 
tion ordered that delegates should be chosen by 
the counties, to meet in New York city, and se- 
lect from among themselves representatives for the 
province. A meeting of the citizens of New York, 
called for the purpose, marched to the Exchange. 
" Two Standard Bearers carried a large Union 
flag, with a Blue Field, on which were the follow- 
ing inscriptions : On one side ' George III. Rex, 
and the Liberties of America. No Popery.' On 
the other, ' The Union of the Colonies, and the 
Measures of Congress.' " ^ This time, instead of 
confusion being created by the radicals or " Trib- 
unes," the meeting was interrupted, but ineffec- 
tively, by Tories, who had purposely met the same 
morning at the house of the Widow de la Mon- 
taigne, and adjourned the hour of the meeting to 
the Exchange, where, with clubs, they got for a 
time the better of the argument until the Whigs 
plundered a neighboring cooper's yard, and drove 
them off the ground with pieces of hoop sticks.^ 

Many of the councilors and assemblymen, in- 
cluding the speaker,^ attended the meeting at the 
Exchange, a further proof of the march of public 
opinion. There Jay was elected to the Provincial 
Convention, as it was called, though its functions 
were purely electoral and it sat only a few days. 

1 New Y(yrk Journal, March 9, 1775. 

2 Gordon, Hist. ofN. Y. i. 306. 

3 Memorandum in Jay MSS. 



CONSERVATIVE WHIG LEADER 39 

By this body he was chosen, with his former asso- 
ciates (except Low who declined and subsequently 
turned royalist), and five others, a delegate to the 
second Continental Congress. To their delegates 
the people now granted authority incomparably 
greater than that legitimately possessed by the first 
Congress, intrusting specifically "full power to 
them or any five of them to concert and determine 
upon such measures as shall be judged most ef- 
fectual for the preservation and establishment of 
American rights and privileges, and for the restora- 
tion of harmony between Great Britain and the 
colonies." ^ 

Meantime, as the confusion of the country in- 
creased, while all regular constitutional government 
had practically ceased to exist, the Committee of 
Inspection found their powers too limited ; they 
therefore recommended the election of a commit- 
tee of one hundred, with authority adequate to the 
emergency, to conduct the government, to enforce 
the association, and to elect deputies to a provincial 
congress to meet in New York, May 22. The 
old Colonial Assembly dissolved on April 3, 1775, 
never to meet again ; and on April 28 the new 
committee was elected, usually known as the Com- 
mittee of Observation, but in reality a revolution- 
ary committee of safety. Jay and his next yoimger 
brother, Frederick, were members. The new com- 
mittee at once drew up for general circulation an 
association engaging to obey the committees and 
1 Journals of Prov. Congress, etc. i. 22, 75. 



40 JOHN JAY 

Congress, and to oppose every attempt by Parlia- 
ment to enforce taxation. They had the streets 
patrolled at night to prevent the exportation of 
provisions, and called on the citizens to arm. May 
5, a letter to " The Lord Mayor and Magistrates 
of London," drafted by Jay, was signed by him 
and eighty-eight members of the committee. " This 
city," the letter ran, " is as one man in the cause 
of Liberty. . . . While the whole continent are 
ardently wishing for peace on such terms as can 
be acceded to by Englishmen, they are indefatiga- 
ble in preparing for the last appeal;"^ a brave 
statement to publish, when the committee knew 
that the city was absolutely defenseless, and that 
troops had already been ordered thither and were 
on their way. On May 10 the second Continental 
Congress assembled at Philadelphia. The shot 
had been fired at Lexington. The measures before 
Congress were of necessity warlike. An address 
to the inhabitants of Canada was drafted by Jay, 
reported from a committee in which he was asso- 
ciated with Samuel Adams and Silas Deane, and 
on adoption was ordered to be translated into 
French for circulation across the border. The 
address warned the Canadians that the measures 
urged against the Americans may be turned against 
them, and concluded : " As our concern for your 
welfare entitles us to your friendship, we presume 
you wiU not, by doing us an injury, reduce us to 
the disagreeable necessity of treating you as ene- 
^ New York Journal, May 25, 1775. 



CONSERVATIVE WHIG LEADER 41 

mies." Jay was a member of the committee which 
prepared the Declaration, published July 6, " set- 
ting forth the causes and necessity of their taking 
arms." "Against violence actually offered, we 
have taken up arms. "We shall lay them down 
when hostilities shall cease on the part of the ag- 
gressors, and all danger of their being renewed 
shall be removed, and not before." 

In spite of strong opposition. Jay persuaded 
Congress of the propriety of a loyal and respectful 
second petition to the king. A committee includ- 
ing himself was appointed to draft it, but it was 
actually written by Dickinson, and on July 8 the 
petition was signed by the members of Congress 
individually. It was necessary, to quote Jay's 
words of a year before, " that the measure of arbi- 
trary power . . . must run over." An address to 
the people of Jamaica and Ireland was also agreed 
to by Congress, and was written by Jay, at the 
request of William Livingston. " Though vilified 
as wanting spirit, we are determined to behave like 
men ; though insulted and abused, we wish for re- 
conciliation ; though defamed as seditious, we are 
ready to obey the laws, and though charged with 
rebellion, will cheerfully bleed in defense of our 
sovereign in a righteous cause ; " but the main 
object of the address was to explain and excuse, as 
unavoidable, the cessation of trade. " I never be- 
stowed much attention to any of those addresses," 
wrote rugged old John Adams to Jefferson toward 
the close of his life, " which were all but repetitions 



42 JOHN JAY 

of the same things ; the same facts and arguments ; 
dress and ornaments, rather than body, soul, or 
substance. ... I was in great error, no doubt, and 
am ashamed to confess it, for these things were 
necessary to give popularity to the cause, both at 
home and abroad." ^ 

Jay's position in urging the second petition to 
the king becomes still more clear when we listen 
to his speech to the Assembly of New Jersey in 
December, when Congress sent him with two others 
to dissuade them from a similar petition. He ar- 
gued, said a member present, that " we had nothing 
to expect from the mercy or the justice of Britain. 
That petitions vere not now the means ; vigor and 
unanimity the only means. That the petition of 
United America, presented by Congress, ought to 
be relied on ; others unnecessary ; and hoped the 
House would not think otherwise." ^ " Before this 
time," wrote Jay in 1821, " I never did hear any 
American of any class, or of any description, ex- 
press a wish for the independence of the colonies," 
and this statement was confirmed by Jefferson and 
Adams. Indeed, in a paper, undated, but written 
probably at this time, the autumn of 1775, Jay 
quotes paragraph after paragraph ^ from the Jour- 
nal of Congress to prove " the malice and falsity " 
of the " ungenerous and groundless charge of their 

1 John Adams's Works, x. 80. 

2 Hare, Archives, 4th Ser. iv. 1874, 1875. 

8 The MS. pages cited are pages 59, 63, 64, 84, 87, 149, 150, 
155, 163, 165, 172, etc.. Jay MSS. 



CONSERVATIVE WHIG LEADER 43 

aiming at independence, or a total separation from 
Great Britain." " From these testimonies," Jay 
concludes, " it appears extremely evident that to 
charge the Congress with aiming at a separation 
of these colonies from Great Britain, is to charge 
them falsely and without a single spark of evidence 
to support the accusation. ... It is much to be 
wished that the people would read the proceedings 
of the Congress and consult their own judgments, 
and not suffer themselves to be duped by men 
who are paid for deceiving them." It was, then, 
the rejection of the petition, as events showed, 
which, as much as anything, suggested and justi- 
fied the idea of independence to the minds of the 
people. 

Jay was one of a committee of four which re- 
ported upon a request from Massachusetts for ad- 
vice, and recommended the semi-revolutionary step 
of electing a new Assembly, but according to the 
customary manner. He was also one of a commit- 
tee of five which drafted the declaration for Wash- 
ington to publish on his arrival before Boston. In 
many of the debates in Congress he took part, and 
not always on the popular side. It was proposed 
to close the custom-houses throughout the country, 
so as to place New York, North Carolina, and 
Georgia on the same footing as the other provinces. 
" Because the enemy has burnt Charlestown," said 
Jay, " would gentlemen have us burn New York ? 
. . . The question is, whether we shall have trade 
or not? And this is to introduce a . . . scheme 



44 JOHN JAY 

which will drive away all your sailors, and lay up 
all your ships to rot at the wharves." In Novem- 
ber Jay was appointed with Franklin, Harrison, 
Johnson, and Dickinson a secret committee to cor- 
respond "with our friends in Great Britain, Ire- 
land, and other parts of the worlds ^ In this 
capacity Jay had more than one promising but 
fruitless interview with the first of the secret emis- 
saries of the French court, Bonvouloir, and these 
apparently harmless interviews were conducted 
with almost fantastic mystery. " Each comes to 
the place indicated in the dark," wrote Bonvouloir, 
in one of his reports, " by different roads. They 
have given me their confidence as a friendly indi- 
vidual." ^ In the autumn the committee sent Silas 
Deane to France, who, until his recall, held fre- 
quent correspondence with Jay by fictitious letters 
with the wide margins written upon with invisible 
ink. 

Queens County, New York, having refused for- 
mally to send delegates to the Provincial Congress, 
William Livingston, Jay, and Samuel Adams were 
appointed a committee to consider the present state 
of the colony. The report, which Jay is said to 
have drawn, urged the arrest of certain disaffected 
persons, and that those who had voted against send- 
ing delegates should be prohibited from leaving the 
country. The New York Congress had applied for 
soldiery to disarm the latter unfortunate persons, 

1 Journals of Congress, 1775, pp. 272, 273. 

^ Duraat, New Materials for History of American Bev. 1, 5. 



CONSERVATIVE WHIG LEADER 45 

and, the committee assenting, the disarmament was 
effected forthwith by Colonel Nathaniel Heard and 
Lord Stirling's battalion. 

Jay was also placed on a committee to draw up 
a declaration justifying the determination of Con- 
gress to fit out privateers against the commerce of 
England. He was on committees to devise means 
for supplying medicines for the army ; to inquire 
into the dispute between Pennsylvania and Con- 
necticut ; to examine into the qualifications of gen- 
erals ; to purchase powder for the troops besieging 
Boston ; to recommend the proper disposition of 
the tea then in the colonies ; and to ascertain the 
truth of a report that Governor Tryon of New 
York had made " the passengers in the late packet 
swear not to disclose anything relative to Ameri- 
can affairs except to the ministry." His time, then, 
was fully occupied in anxious and laborious work. 
But even the Continental Congress sometimes en- 
joyed a holiday. " The Congress spent yesterday 
in festivity," wrote Jay to his wife, September 29, 
1775.^ " The Committee of Safety were so polite 
as to invite them to make a little voyage in their 
Gondolas as far as the fort, which is about twelve 
miles from the city. Each Galley had its company, 
and each company entertained with variety of 
music, etc. We proceeded six or eight miles down 
the river, when, the tide being spent and the wind 
unfavorable, we backed about and with a fine 
breeze returned, passed the city, and landed six 

1 Jay MSS. 



46 JOHN JAY 

miles above the town at a pretty little place called 
Paris Villa. ... I wished you and a few select 
friends had been with me. This idea, though 
amidst much noise and mirth, made me much 
alone. Adieu, my beloved." 

At first there was some difficulty in getting the 
colonies to make any provision for the delegates. 
New York finally allowed them four dollars per 
day, though " the allowance," says Jay, " does by 
no means equal the loss." As Christmas ap- 
proached. Jay asked for leave of absence, but was 
refused, since, with two of the five New York dele- 
gates away on leave, the province wotdd otherwise 
be unrepresented. " Don't you pity me, my dear 
Sally ? " writes the young husband. " It is, how- 
ever, some consolation that, should the Congress 
not adjourn in less than ten days, I have deter- 
mined to stay with you till , and, depend upon 

it, nothing but actual imprisonment will be able to 
keep me from you." ^ 

In the mean time Jay was not unobservant of 
events in New York. In November the press of 
Rivington, the Tory printer, had been destroyed 
by a party of light horsemen from Connecticut, 
who also seized Bishop Seabury and others who 
had protested against the doings of the Congress. 
Jay's comments show a rather complicated state 
of mind. " For my part I do not approve of the 
feat, and think it neither argues much wisdom nor 
much bravery ; at any rate, if it was to have been 
1 To Mra. Jay, December 23, 1775, Jay MSS. 



CONSERVATIVE WHIG LEADER 47 

done, I wish our own people, and not strangers, 
had taken the liberty of doing it. I confess I am 
not a little jealous of the honor of the province, and 
am persuaded that its reputation cannot be main- 
tained without some little spirit being mingled with 
its prudence." ^ To Alexander McDougall, in the 
New York Convention, he writes, urging them " to 
impose light taxes rather with a view to precedent 
than profit." McDougall now had become an inti- 
mate friend. A month earlier he had been the 
means of Jay's making the only application for 
office he ever made in his life. McDougall wrote, 
complaining of the reluctance of men of position 
to take commands in the provincial militia, and at 
once Jay applied for appointment, and was ap- 
pointed colonel of the second regiment, New York 
City Militia.^ For the next year or two his name 
appears as Colonel Jay in the Journal of the New 
York Congress and conventions. Jay was also 
urged by Hamilton, the astutest politician of nine- 
teen years that ever lived, to frustrate the Tory 
scheme to issue writs for a new Assembly, by be- 
coming, with Livingston, Alsop, and Lewis, a can- 
didate for New York County. " The minds of all 
our friends will naturally tend to these," he added, 
" and the opposition will of course be weak and 
contemptible ; for the Whigs, I doubt not, consti- 
tute a large majority of the people." ^ 

1 To Colonel Woodhnll, November 26, 1775, Jay MSS. 

2 October 27, 1775. 

3 From Alexander Hamilton, December 31, 1775, Jay MSS. 



48 JOHN JAY 

In April, 1776, Jay had been elected a delegate 
to the New York Provincial Congress, which met 
at the city hall on May 14. Four days before 
the day of meeting, the Continental Congress had 
passed a resolution recommending the colonies " to 
adopt such government as shall, in the opinion of 
the representatives of the people, best conduce to 
the happiness and safety of their constituents in 
particular, and America in general." Jay was at 
once summoned to lend his counsel in the emer- 
gency, without vacating his seat in the Continental 
Congress, though the New York Provincial Con- 
gress forbade his leaving " without further orders." 
For this reason it was that Jay's name is not among 
those of the signers of the Declaration of Independ- 
ence. Obedient to the call of his colony, Jay 
mounted horse and started forthwith for New 
York, where he was sworn in and took his seat in 
the local congress on May 25. He was at once 
placed on one committee to draft a law relating to 
the peril the colony is exposed to by " its intestine 
dangers," ^ and on another to frame into resolutions 
the report of the committee on the recommendation 
by Congress of a new form of government.^ Ac- 
cordingly, on June 11, certain important resolu- 
tions on the subject of independence were moved 
by Jay and agreed to : " That the good people of 
this colony have not, in the opinion of this con- 
gress, authorized this congress, or the delegates of 
this colony in the Continental Congress, to declare 
1 Journals of Prov. Cong. i. 461. ^ j^jj?. i. 462. 



CONSERVATIVE WHIG LEADER 49 

this colony to be and continue independent of the 
crown of Great Britain." 

This action of Jay's was not due to any doubt in 
his own mind as to the necessity of the proposed 
change, but simply to his conservative adherence 
to constitutional methods. Duane, his colleague 
in Congress, wrote urging delay : " The orators of 
Virginia with Colonel Henry at their head are 
against a change of government. . . . The late 
election of deputies for the convention of New York 
sufficiently proves that those who assumed exces- 
sive fervor and gave laws even to the convention 
and committees were unsupported by the people. 
There seems, therefore, no reason that one colony 
should be too precipitate in changing the present 
mode of government. I would first be well assured 
of the opinion of the inhabitants at large. Let 
them be rather followed than driven on an occa- 
sion of such moment." ^ " So great are the incon- 
veniences," replied Jay, " resulting from the present 
mode of government, that I believe our convention 
will almost unanimously agree to institute a better, 
to continue until a peace vnth Great Britain may 
render it unnecessary." ^ Further reflection, how- 
ever, convinced him that the unmistakable assent 
of the people was the only safe foundation for a 
new government, and perhaps, too, that the existing 
convention was less republican than he supposed. 
" Our convention," he wrote to Livingston, " will, 

1 From James Duane, May 18, 1776. 

2 To Duane, May 29, 1776. 



50 JOHN JAY 

I believe, institute a better government than the 
present, which, in my opinion, will no longer work 
anything but mischief ; and although the measure 
of obtaining authority by instructions may have its 
advocates, I have reason to think that such a reso- 
lution will be taken as will open a door to the elec- 
tion of new or additional members." ^ It should 
be remembered, too, that only the preceding De- 
cember the last Provincial Congress had resolved 
" that it is the opinion of this congress, that none 
of the people of this colony have withdrawn their 
allegiance from his majesty." ^ Such being the 
case in December, it was surely prudent in June to 
refer again to the people before announcing their 
independence. 

The Declaration of Independence, that was now 
signing at Philadelphia, was a turning-point in 
Jay's public life. In the Committee of Fifty-one 
he was apparently the representative of the well-to- 
do merchants who had confidence in the son of Mr. 
Peter Jay. Judicious and prudent, rather than 
emotional. Jay's disposition was at the time emi- 
nently conservative. With the example of Boston 
before them, with excited Sons of Liberty declaim- 
ing in every tavern, ringing bells, parading with 
banners, and threatening loyal business men with 
letters signed " Committee on Tar and Feathers," 
there was grave danger that order might be de- 
stroyed by mob violence, and trade ruined by ill- 

1 To R. R. Livingston, May 29, 1776, Jay MSS. 

2 New York Journal, December 21, 1775. 



CONSERVATIVE WHIG LEADER 51 

considered restrictions. The only safety was in 
deliberation and caution. The colonies, as yet, 
were united neither by sentiment nor interest, and 
in every colony, especially in New York, the parties 
of Whig and Tory, the radicals and conservatives, 
were, in aggregate wealth and influence, nearly 
equally divided. Of Jay, and of every man of that 
day like him, it may be said, though in a different 
sense from that of the old Roman, that cunctando 
restituit rem, by delay he created a nation. Con- 
servative though not Tory, he saw that the struggle 
was to preserve and continue liberty they had al- 
ways possessed, rather than to win liberty. The 
Revolution, as he was fond of saying, found us free 
as our fathers always were ; therefore it is false to 
suggest that we were ever emancipated. For this 
reason was the result of the war to be permanent, 
since it was the work of evolution, rather than of 
revolution. It is often said that the action of Jay 
and Dickinson, in promoting petition after petition 
to the king in terms of almost undignified concili- 
ation, lost the opportunity for successful action and 
protracted the war. It is forgotten, perhaps, that 
at that early period the only action possible would 
have been spasmodic, and far from unanimous ; and 
that, even if successful, a sudden and short war 
would have left unchanged the disposition of half 
the people, which even the long years of the Revo- 
lution changed but slowly. The reaction which 
followed in the distracted days of the Confedera- 
tion, and which nearly wrecked the infant state, 



62 JOHN JAY 

would otherwise surely have resulted in thirteen 
jealous and disunited colonies, instead of one great 
nation. 

To this end did the work of Jay tend, consciously 
or unconsciously. To this end was the long suc- 
cession of state papers that he prepared as drafts- 
man, so to speak, of the Continental Congress. To 
this end was his work in New York, reconciling 
the conservative merchants and the radical mechan- 
ics, keeping the favor of the less bigoted royalists, 
and winning gradually the confidence of the Sons 
of Liberty. 

Time soon decided the matter. The old gov- 
ernment was dead beyond resuscitation. Anarchy 
threatened, the Revolutionary committees were es- 
sentially local and temporary expedients. The war 
might last for years, and a more stable government 
was essential. " I see the want of government in 
many instances," wrote McDougall. "I fear lib- 
erty is in danger from the licentiousness of the 
people on the one hand, and the army on the other. 
The former feel their own liberty in the extreme." ^ 
A significant admission from the old Son of Lib- 
erty. It was the course of wisdom to establish a 
new form of government, and it was only the cir- 
cumstances of the moment that required it to be 
based on a Declaration of Independence. 

1 From Alex. McDougall, March 20, 1776, Jay MSS. 



CHAPTER m 

EEVOLUTIONABY LEADER 

1776-1779 

The new Provincial Congress of New York met 
at "White Plains on July 9, and at once referred 
to a committee a copy of the Declaration of Inde- 
pendence, just received from Philadelphia. From 
this committee, on the same afternoon. Jay, as 
chairman, reported a resolution of his own draft- 
ing, which was unanimously adopted : " That the 
reasons assigned by the Continental Congress for 
declaring the United Colonies free and independent 
States are cogent and conclusive ; and that while 
we lament the cruel necessity which has rendered 
that measure unavoidable, we approve the same, 
and will, at the risk of our lives and fortunes, join 
with the other colonies in supporting it." ^ The 
New York delegates in Congress were accordingly 
authorized to sign the Declaration, which they had 
hitherto refrained from doing on the ground of 
lack of power. The next day the style of the 
House was changed to the " Convention of the Re- 
presentatives of the State of New York." British 
1 Journals of Provincial Congress, p. 518. 



54 JOHN JAY 

ships of war were at this moment at Tarrytown, 
within six miles of White Plains. 

Jay had been a member of the committee that 
reported to the old convention, June 6, a purely 
formal acknowledgment of the Virginia resolu- 
tions of independence ; a report which the conven- 
tion agreed to keep secret till after the elections 
of delegates " to establish a new form of govern- 
ment." But his course in moving the declaration 
of July 9 was not therefore inconsistent, " most 
refined deceit," as it is termed by one writer.^ 
For the old convention was not authorized to com- 
mit itself upon the question, while the new conven- 
tion was so authorized specifically. His action of 
June 6 and 11 was identical in spirit with that of 
Duane at Philadelphia, who pledged New York to 
independence, at the same time declaring that he 
could not legally vote on the question until further 
instructions were received from his constituents.^ 
Of the wisdom of the measure, even with regard 
to its effect on European politicians, Jay was now 
thoroughly convinced ; and it was on this ground 
that the opposition rested in Congress. "This 
most certainly," he wrote to Lewis Morris, " will 
not be the last campaign, and in my opinion Lord 
Howe's operations cannot be so successful and de- 
cisive as greatly to lessen the ideas which foreign 
nations have conceived of our importance. I am 
rather inclined to think that our declaring inde- 

1 Dawson, Westchester Co. in the Am. Rev. pp. 186, 187, 196, 197. 

2 Lamb, Hist, of N. Y. u. 83. 



REVOLUTIONARY LEADER 55 

pendence in the face of so powerful a fleet and 
army will impress them with an opinion of our 
strength and spirit ; and when they are informed 
how little our country is in the enemy's possession, 
they will unite in declaring us invincible by the 
arms of Britain." ^ 

Almost immediately a short but sharp dissen- 
sion arose between the convention and Congress. 
The latter body issued a colonel's commission to a 
major in the New York militia, who had distin- 
guished himself in the Canadian campaign, and 
ordered him to raise and officer in New York a 
battalion for the Continental service. Though Jay 
had urged at Philadelphia in the spring the wis- 
dom of removing from colonial control all the 
militia so soon as they were ordered out on active 
duty, the contrary practice still prevailed ; and 
this sudden discrimination in the case of New 
York filled him and the convention with indigna- 
tion, as an arbitrary exercise of power ; and in a 
sharp report, which the convention moderated, he 
condemned the excuse of " the necessity of the 
case," as a fruitful mother of tyranny. 

New York city was now occupied by the enemy, 
and the British fleet in the bay was daily expected 
up the river. Warned by Washington of the dan- 
ger of the passes being seized between the Hudson 
and Albany, the convention appointed Jay with 
five others a secret military committee " to devise 
and carry into execution such measures as to them 
1 September, 1776, Jay MSS. 



56 JOHN JAY 

shall appear most effectual for obstructing the 
channel of Hudson's River, or annoying the ene- 
my's ships ; " and the next day authorized them to 
impress " boats, . . . wagons, horses, and drivers 
... as well as to call out the militia, if occasion 
should require." ^ The committee held its first 
meeting at the house of Mr. Van Kleeck, at 
Poughkeepsie, and at once sent Jay to the Salis- 
bury Iron Works in Connecticut for cannon and 
shot. He found himself obliged to obtain permis- 
sion from Governor Trumbull at Lebanon, and the 
governor had to consult his council ; but finally 
Jay procured several small cannon, which he trans- 
ported safely to Hoffman's Landing and thence to 
Fort Montgomery .2 

Jay was not a man of war ; his duties as colonel 
were apparently purely formal ; but from his con- 
nection with the secret committee and other mili- 
tary committees he was in constant communication 
with the generals at headquarters, with McDougall 
and Troup, and later with "Washington, Clinton, 
and Schuyler. To Jay, McDougall commended 
his son, a prisoner in Canada, " lest he should in 
the exchange of those prisoners be forgot. ... If 
I should do otherwise than well, I pray remember 
this boy." ^ " You always were my benefactor," 
wrote Troup, " and I hope wiU continue so as long 
as I walk in the line of prudence, and prove my- 

* Journals of Provincial Congress, i. 526. 

2 Report by Jay, August 7 (?), Jay MSS. 

3 From General McDougall, December 2,1776, Jay MSS. 



REVOLUTIONARY LEADER 57 

self a lover of American liberty." ^ And it was 
to Jay that Schuyler, embittered by the partisan 
charges that were provoked by the evacuation of 
Ticonderoga, intrusted the defense of his reputa- 
tion. On the eve of an expected engagement with 
the British troops he wrote sadly : " I may possibly 
get rid of the cares of this life, or fall into their 
hands ; in either case I entreat you to rescue my 
memory from that load of calumny that ever fol- 
lows the unfortunate." ^ Of the details of the war 
Jay kept himself unusually well informed, and his 
private agents were reputed as being, with those of 
Generals Clinton and Heath, and Governor Liv- 
ingston, among the most intelligent in that service.^ 
His opinions, then, on the military measures that 
should have been adopted are worth noting, though 
they were not followed, and are quoted by Mahon 
merely on account of their severity. He believed,* 
and urged in vain,^ that the city of New York and 
the whole of the State below the mountains should 
be desolated, the Hudson shallowed at Fort Mont- 
gomery, the southern passes fortified, and the army 
stationed in the mountains on the east of the river 
with a large detachment on the west. Thus, he 
added, " the State would be absolutely impregna- 
ble against all the world on the sea side, and would 

1 From General Troup, July 22, 1777, Jay MSS. 

2 From General Schuyler, July 27, 1777, Jay MSS. 
8 Mag. Am. Hist. xi. 59. 

* Force, Am. Archives, 5th Ser. ii. 951. To G. Morris, October 
6, 1776. 
8 To General Schuyler, December 11, 1776, Jay MSS. ii. 17. 



58 JOHN JAY 

have nothing to fear except from the way of the 
lake." 

In view of the dangers menacing the State, the 
consideration of a new form of government was 
postponed till August 1, when, on motion of Gou- 
verneur Morris, seconded by Mr. Duer, the conven- 
tion appointed a committee to prepare and report 
a plan for the organization of a new form of gov- 
ernment. Jay was made chairman, and his asso- 
ciates included men of eminent ability: Gouver- 
neur Morris, Robert R. Livingston, William Duer, 
Abraham and Robert Yates, General Scott, Colonel 
Broome, Mr. Hobart, Colonel De Witt, Samuel 
Townsend, William Smith, and Mr. Wisner. The 
committee was directed to report on August 16. 
The convention notified Jay and two of his asso- 
ciates on the secret military committee of their 
new appointment, and commanded their attend- 
ance. Jay was still occupied in fortifying West 
Point, and on the 12th the convention summoned 
them still more imperatively unless they were " ab- 
solutely necessary in the secret committee." But 
General Clinton refused to let them go. Towards 
the end of the month the increasing danger from 
excursions of the enemy forced the convention to 
move from White Plains to Harlem, where they 
sat in the church, afterward meeting successively 
at Kingsbridge, at Odell's, in Philipse's Manor, 
then at Fishkill, Poughkeepsie, and Kingston. 

Outside of the city of New York there was no 
overwhelming popular sentiment for independence 



REVOLUTIONARY LEADER 59 

in that State. A local aristocracy had been founded 
by the Dutch East India Company, and had been 
fostered by the English governors. Many of the 
first families of the province were ardent royalists, 
connected by blood or long association with Eng- 
land; on the large manorial estates, the tenant 
farmers inclined to be either indifferent to poli- 
tics or adherents of their landlords ; while, with 
an English army in the city and an English fleet 
on the river, there were thousands who naturally 
deemed neutrality to be the only wisdom. The 
upper part of the State was already cut off from 
the lower, and but little organized treachery would 
have sufficed to place the whole State at the mercy 
of the British. Meantime the fate of the continent 
seemed for the moment to hinge upon New York ; 
and to the patriotic convention it appeared essen- 
tial to the common welfare to rid the State, still 
within their control, of the disaffected, and of all 
who were secretly but none the less actively hostile. 
On motion of Jay, the convention had already, on 
June 16, declared guilty of treason, with the penalty 
of death, all persons inhabiting or passing through 
the State who should give aid or comfort to the 
enemy ; ^ a resolution which, in spite of its harsh- 
ness, was almost identical with that adopted about 
a week later by the Continental Congress. For- 
tunately the law may be said to have been " merely 
buncombe, meaning nothing ; " ^ but it may have 

1 Journals of Provincial Congress, i. 526. 

2 Dawson, Westchester Co. in the Am. Rev. p. 210. 



60 JOHN JAY 

been none the less a useful bit of policy. In the 
middle of June, when Forbes, the gunsmith, was 
charged with conspiring against the life of Wash- 
ington,! ll^Q late convention had in great haste ap- 
pointed Livingston, Jay, and Gouverneur Morris 
as a secret committee to examine disaffected per- 
sons. When, after ten days' labor, their sessions 
were interrupted by the panic that was caused by 
Lord Howe's arrival, there were twenty-seven pris- 
oners in the city hall, and forty-three (including 
the mayor) in the new jail.^ How many, like 
Thomas Jones, the historian, were examined and 
banished for disaffection, is unknown.^ This was 
the last that is heard of what was known as the 
committee to examine disaffected persons. 

The new convention found itself fallen upon days 
still more evil. Governor Tryon, from his refuge 
on board ship, seemed as active and omnipresent 
as the Prince of Evil; "so various, and, I may 
add, successful have been the arts of Governor 
Tryon and his adherents," wrote Jay, "to spread 
the seeds of disaffection among us, that I cannot at 
present obtain permission to return to Congress." * 
On September 26 a secret committee was ap- 
pointed, on motion of Duer, consisting of Jay and 
three, subsequently six, others. It was termed " a 
committee for inquiring into, detecting, and defeat- 

1 Force, Am. Archives, 4th Ser. fix, 1178. 

2 Dawson, Westchester Co. in the Am. Bev. p. 171, note. 

* Jones, Hist, of New York, ii. 295. 

* To K. Morris, October 6, 1776, Jay MSS. 



REVOLUTIONARY LEADER 61 

ing conspiracies . . . against the liberties of Amer- 
ica," and was empowered " to send for persons and 
papers, to call out detachments of the militia in 
different counties for suppressing insurrections, to 
apprehend, secure, or remove persons whom they 
might judge dangerous to the safety of the State, 
to make drafts on the treasury, to enjoin secrecy 
upon their members and the persons they employed, 
and to raise and officer two hundred and twenty 
men, and to employ them as they saw fit." This 
committee organized, October 8, at Conner's tavern 
at Fishkill, with Duer in the chair. Their minutes 
for 1776 are in the handwriting of Jay, who, be- 
sides acting as secretary, after the first few meet- 
ings sat permanently as chairman. Day after day 
the local county committees of safety sent to Fish- 
kill batches of prisoners under guard, men, women, 
and girls, upon charges of receiving protection from 
the enemy, corresponding with the enemy, refus- 
ing to sign the association or oath of allegiance to 
the Congress, or simply with disaffection to the 
cause. Those who subscribed to the association 
were usually dismissed ; but all who refused were 
subjected to punishment, confinement in jail, trans- 
portation to another town or colony, residence at 
Fishkill ujider parole " to remain within three miles 
of the stone church," or, in less serious cases, to 
residence at home under parole not to go six miles 
away. Peter Van Schaack, Jay's friend and class- 
mate, was sent with his brother David to Boston, 
" under the care of a discreet officer," at " their 



62 JOHN JAY 

own expense . . . there to remain on their parole 
of honor," because they " have long maintained an 
equivocal neutrality in the present struggles and 
are in general supposed imfriendly to the Ameri- 
can cause." ^ One lot o£ prisoners was sent to New 
Hampshire, and the committee wrote at the same 
time to the New Hampshire legislature, desiring 
that such as were not directed to be confined, and 
not in circumstances to maintain themselves, be 
put to labor and compelled to earn their subsist- 
ence.2 One James McLaughlin, for being " noto- 
riously disaffected," was ordered to be " sent to 
Captain Hodges of the ship of war Montgomery, 
at Kingston," and Captain Hodges was directed 
" to keep him aboard the said ship, put him to such 
labor as he may be fit for, and pay him as much as 
he may earn." ^ These sentences were often ingen- 
ious, but, however painless, they were unquestion- 
ably severe to people of position ; for all were so 
worded as to be indefinite in duration, " till further 
orders from this committee, or the convention, or 
future legislature of this State." Sometimes Jay 
and Morris were the only members present, but the 
committee did not on that account neglect its busi- 
ness. On February 27, 1777, it was dissolved by 
order of the convention, and in its stead commis- 
sioners were appointed under instructions drawn 
by their predecessors. 

1 Minutes, December 21, 1776. 

2 To the General Court of New Hampshire, October 31, 1776, 

Jay MSS. 

^ Minutes, January 4, 1777. 



REVOLUTIONARY LEADER 63 

It is, perhaps, not surprising that Jay's conspicu- 
ous position on this extra-legal despotic tribunal 
should have excited against him the bitter enmity 
and vituperation of the royalists. " In imitation 
of the infamous Dudley," said the " Royal Gazette," 
he " had formed and enforced statutes that de- 
stroyed every species of private property and re- 
pose." ^ But the times demanded prompt and 
stern measures ; under military rule, in days of 
civil war, which the Revolution was in New York, 
suspected traitors are generally shot with short 
shrift ; and if any man less cool-headed and hu- 
mane than Jay had been in control, it may be 
doubted whether imprisonment would have been 
substituted for death. " Can we subsist, did any 
state ever subsist, without exterminating traitors ? " 
wrote Major Hawley of the Massachusetts Provin- 
cial Congress to Elbridge Gerry. " It is amazingly 
wonderful that, having no capital punishment for 
our intestine enemies, we have not been utterly ex- 
terminated before now. For God's sake, let us not 
run such risks a day longer." ^ In New York the 
times were even more critical than in Massachu- 
setts. 

Jay's official conduct towards the royalists was 
throughout inspired by a sense of duty and by 
rigid impartiality. " In the course of the present 
troubles," he said, referring to his action on the 
secret committee, " I have adhered to certain 
fixed principles, and faithfully obeyed their dic- 

1 January 23, 1779. 2 Life of Elbridge Gerry, i. 207. 



64 JOHN JAY 

tates without regarding the consequences of my 
conduct to my friends, my family, or myself." i 
The uprightness of his motives was indeed ad- 
mitted by those who suffered most from his official 
actions. Van Schaack, the friend whom Jay had 
exiled to Boston for " neutrality," was allowed to 
return the next year under parole. His wife, who 
was dying, longed for the sea breezes and famil- 
iar sights of New York, but Jay refused her the 
necessary permission to visit the city merely and 
return. " I never doubted your friendship," wrote 
Van Schaack in some natural depression of spirits, 
" yet I own that was not the ground upon which I 
expected to succeed. ... As a man I knew you 
would espouse the petition, if public considera- 
tions did not oppose it ; and if they did, I knew 
no friendship could prevail on you to do it." ^ 
"Though as an independent American," Jay de- 
clared to Van Schaack when a refugee in England 
in 1782, " I considered all who were not with us, 
and you among the rest, as against us ; yet be as- 
sured that John Jay did not cease to be a friend 
to Peter Van Schaack." ^ To Colonel James De- 
lancey, who had taken a royal commission and 
was at the time a prisoner of war in Hartford jail, 
Jay wrote recalling his early friendship : " How 
far your situation may be comfortable and easy, I 
know not ; it is my wish and shall be my endeavor 

1 To Peter Van Schaack, 1782, Life of Van Schaack, p. 301. 

2 Life of Peter Van Schaack, p. 100. 
8 Ibid. p. 302. 



REVOLUTIONARY LEADER 65 

that it be as much so as may be consistent with 
the interest of the great cause to which I have de- 
voted everything I hold dear in this world ; " and 
he sent him a hundred pounds. 

Very different was his treatment of Colonel 
Peter Delancey, who commanded a corps of law- 
less spirits known as Delancey's Boys, the cow- 
boys of Cooper's " Spy," the murderers of Colonel 
Greene. " When peace was made, Mr. Jay was 
desirous to allay animosities, and he readily re- 
newed his acquaintance with the royalists who had 
been induced by principle to join the English, but 
he refused to profess any regard for the perfidious 
and the cruel. Among the latter he considered 
Colonel Delancey, and therefore when he met him 
in London he would not know him." ^ Many of 
Jay's relations and friends, indeed, were either 
Tories or perplexed as to their duty. Many of the 
Philipses, a family with which Mrs. Jay was con- 
nected by descent, and her husband by adoption, 
were decided Tories and in due time refugees. A 
friend. Dr. Beverly Robinson, asked Jay to take 
care of his family while he consulted Colonel Phil- 
ipse on his proper course of action. " The infor- 
mation you gave me when I was before the com- 
mittee . . . that every person, without exception, 
must take an oath of allegiance to the States of 
America, or go with their families to the king's 
army, has given me the greatest concern. I can- 
not as yet think of forfeiting my allegiance to the 
^ Judge William Jay, Jay MSS. 



66 JOHN JAY 

king, and I am unwilling to remove myself or 
family from this place, or at least out of this coun- 
try." ^ Some years later, a cousin, Miss Rebecca 
Bayard, wrote on behalf of her brother and his 
family to expedite their passage to New York. 
They had a pass from General Gates and a pro- 
mise from Clinton, then governor, but were stopped 
on the way .2 The answer was kind, but firm, that 
it was decided to pass no persons except on public 
business. Jay even thought fit to warn Gouver- 
neur Morris : " Your enemies talk much of your 
Tory connections in Philadelphia. Take care. Do 
not expose yourself to calumny." ^ 

By the end of December, 1776, Westchester 
County had been abandoned to the British ; the 
attack on Canada had failed, and Washington was 
retreating through New Jersey. " In this moment 
of gloom and dismay," Jay prepared an address 
from the Provincial Convention to their constitu- 
ents : " What are the terms on which you are pro- 
mised peace ? Have you heard of any except 
absolute, unconditional obedience and servile sub- 
mission? . . . And why should you be slaves now, 
having been freemen ever since the country was 
settled? ... If success crowns your efforts, all 
the blessings of freedom shall be your reward. If 
you fall in the contest, you will be happy with 
God in Heaven." The address was favorably re- 

1 From Dr. Beverly Robinson, March 4, 1777, Jay MSS. 

2 From Miss Rebecca Bayard, June 28, 1778, Jay MSS. 
^ To Gouvemeur Morris, January, 1778. 



REVOLUTIONARY LEADER 67 

ceived, and Congress at Philadelphia ordered it to 
be translated and printed in German at the public 
expense. The meagre minutes of the secret com- 
mittee, when read between the lines, suggest an 
unsuspected extent of vacillation and disaffection 
throughout the State, especially in Westchester 
County ; and a late writer, whose facts are as often 
exact as his comments on them are perverse, has 
proved that the farmers no less than the gentry 
were infinitely perplexed and puzzled by the con- 
flicting claims of the king and the State.^ In this 
short period immediately following the Declaration 
of Independence, Jay showed the promptness and 
boldness and the indefatigable, unhesitating energy 
which the critical days demanded. 

^ Dawson, Westchester Co. in the American devolution, passim. 



CHAPTER IV 

CONSTRUCTIVE STATESMAN 

During the spring of 1777 Jay was engaged on 
the committee to frame a new form of government. 
"For this purpose," said his son, " he retired from 
the convention to some place in the country. Upon 
reflecting on the character and feelings of the con- 
vention, he thought it prudent to omit in the draft 
several provisions that appeared to him improve- 
ments, and afterwards to propose them separately 
as amendments. ... It is probable that the con- 
vention was ultra-democratic, for I have heard him 
observe that another turn of the winch would have 
cracked the cord" ^ 

The Constitution thus formed was singularly ex- 
pressive of the conservative instincts of the men of 
the American Revolution, and of the unflinching 
common sense characteristic of the Dutch-Huguenot 
merchants of New York, of whom Jay was a natural 
leader. It is said, indeed, that as " there were few 
models to follow and improve, the work of framing 
a fundamental law for the State may fairly be said 
to have been undertaken in an almost unexplored 
field." 2 But such a statement needs much quali- 

^ Judge William Jay, Jay MSS. 

* J. H. Dougherty, " Constitutions of the State of N. Y.," Polit- 
ical Science Quarterly, September, 1888, p. 490. 



CONSTRUCTIVE STATESMAN 69 

fication before it ceases to be misleading. John 
Adams had an explanation of the origin of the New 
York Constitution that is equally inadequate. He 
. wrote in his old age to Jefferson ^ that, according 
to Duane, Jay had gone home having Adams's let- 
ter to Wythe "in his pocket for his model and 
foundation." But the letter to Wythe contained 
only the most meagre sketch of a plan of govern- 
ment, amounting to little more than the sugges- 
tion that legislative, executive, and judicial powers 
should be balanced ; that there should be a repre- 
sentative assembly, a council chosen by the assem- 
bly, and a governor appointed by the assembly and 
council ; the governor to appoint all officers by and 
with the consent of the council ; and judges to hold 
office during good behavior.^ The letter to Wythe 
did not propose, as Adams did later, as an alterna- 
tive, the election of the governor by the people, 
and of the council by the freeholders.^ The fact 
is, that the Constitution of New York was a special 
adaptation of the provincial government, with as 
few modifications as the circumstances required, 
and those chiefly suggested by the history of the 
province.^ In the same sense, the Federal Consti- 
tution is, in the words of Sir Henry Maine, " in 
reality a version of the British Constitution." ^ 

^ September 17, 1823, John Adams's Works, x. 410. 

2 Ibid. iv. 193. 

3 To John Penn, Ibid. iv. 203. 

* R. L. Fowler, " Constitution of the Supreme Coort of N. Y.," 
Albany Law Journal, December 18, 1880, p. 486. 
^ Maine, Popular Government, p. 207. 



70 JOHN JAY 

" We have a government, you know, to form," 
Jay wrote ; " and God knows what it will resemble. 
Our politicians, like some guests at a feast, are per- 
plexed and undetermined which dish to prefer." 
This confusion of mind was, perhaps, reflected by 
the choice of " State " as the title of the new gov- 
ernment, a colorless word, though used to designate 
the government of England under Cromwell.^ 

" All power whatever in the State hath reverted 
to the people thereof," is the recitation in the pre- 
amble ; and the first section ordained that no au- 
thority should be exercised over the people of the 
State but such as should be derived from and 
granted by the people ; a statement of a fact and 
its logical corollary. Although, nominally, the old 
provincial legislature had consisted only of a single 
house, the council exercised powers of a legislative 
character, and this council, rather than the English 
House of Lords, may have been the model of the 
state Senate.^ As has been well said : " The bi- 
cameral legislature, the power of the legislative 
houses to be the sole judges of their own member- 
ships, the method of choosing the presiding officer 
of the more popular branch, the parliamentary 
common law, the veto on legislation, the bill of 
rights, the judicature, the jurisprudence, and the 
franchises, were all provincial institutions, contin- 
ued after the Revolution by virtue of the Constitu- 

1 Fowler, Albany Law Journal, July 21, 1879, p. 490 ; December 
18, 1880, p. 486 n. 

2 Albany Law Journal, December 18, 1880, p. 487. 



CONSTRUCTIVE STATESMAN 71 

tion, and because they were associated with all that 
was wisest and best in the previous history of New 
York. The Revolution was not a war against these 
things ; it was a war for these things, — the com- 
mon property of the Anglican race." ^ Property 
qualifications were accordingly required as before ; 
electors of the governor and senators must enjoy 
a freehold worth XlOO (1250) a year; electors 
of assemblymen must have a freehold worth <£20 
($50), or a tenancy worth 40s. ($5) a year, and 
must pay taxes. It was " a favorite maxim with 
Mr. Jay, that those who own the country ought 
to govern it."^ But before condemning such a 
maxim and its application in the Constitution as 
" aristocratic," as modern speakers are prone to do, 
it is well to remember that in 1769 the Province 
of New York had nearly 39,000 freeholders and 
burgesses entitled to vote, a number in proportion 
to population far greater than existed in England 
before the Reform Bill ; that there was as yet no 
organized demand for the franchise by the unquali- 
fied masses : and that before the French Revolution 
an absolute democracy was but the dream of a 
theorist. 

As to the powers to be given to the governor, 
experience with the royal governors naturally sug- 
gested a policy of jealous restriction ; although the 
success of the prerogative party in the past had 
been due not so much to gubernatorial power as to 

1 Albany Law Journal, December 18, 1880, p. 488. 

2 Jay's Jai/, i. 70. 



72 JOHN JAY 

the occasional subserviency of the provincial As- 
sembly, which body, through the small number of 
representatives, not over twenty-seven at the time 
of the Revolution, and also by reason of the pro- 
tracted sessions, at first septennial and finally in- 
definite in duration, had naturally soon ceased to 
be really representative. The governor, who was 
appointed for three years, a term to which, after a 
change to a two years' term, New York returned 
in 1874, was held in check by two specially devised 
councils, the Council of Appointment and the 
Council of Revision. The former consisted of the 
governor and one senator, chosen annually from 
each of the five great districts into which the State 
was divided for the election of senators, and had 
the appointment of practically all the officers in 
the State, except those of the towns. The Council 
of Revision, composed of the governor, the chan- 
cellor, and the judges of the Supreme Court, had 
the sole power of veto, subject to reversal by a two 
thirds vote in each house. In this way the gov- 
ernor became little more than a mere figurehead, 
without responsibility for either appointments or 
vetoes ; in the Council of Appointment partisan- 
ship had free opportunity to confirm its corrupt 
bargains ; and both councils were promptly abol- 
ished by the Constitutional Convention of 1822, 
which gave the sole power of veto to the governor. 
Jay himself, when governor, had reason, as will 
appear, to regret his suggestion of the Council of 
Appointment ; which, in part, may have originated 



CONSTRUCTIVE STATESMAN 73 

in the old Council of the province. Had, however, 
Jay's construction of the language of the Constitu- 
tion been followed, by which the governor had sole 
power of nomination, those evils would have been 
avoided. Against the Council of Revision, which 
had its analogue in the veto on provincial acts 
possessed by the king in Privy Council, no such 
objections could be raised, and its abolition, after 
128 out of 6590 bills had been vetoed, was due 
chiefly to the growing jealousy on the part of the 
democracy of any supreme non-elective body. 

Especially conservative were the framers of the 
Constitution in all that concerned the courts of law 
and the legal customs of the colony. Socage ten- 
ure, practically allodial, had been introduced under 
the Duke of York's government a century before. 
The continuation of the Supreme Court by mere 
incidental mention, and of trial by jury " in all 
cases in which it hath heretofore been used in the 
colony of New York ; " and the clause moved in 
convention by Jay, that " the legislature . . . shall 
at no time hereafter institute any new court or 
courts, but such as shall proceed according to the 
course of the common law," — were reassertions of 
the claims of the popular party in opposition to the 
pro-prerogative men during the contest over the 
establishment of a court of equity in 1734, and 
during the later debate over the case of Cosby v. 
Van Dam, when the justices of the Supreme Court 
attempted to hold a court of exchequer.^ The 
1 Albany Law Journal, May 17, 1879, p. 492. 



74 JOHN JAY 

limitation of the tenure of the judges " during good 
behavior, or until they shall have respectively at- 
tained the age of sixty years," perpetuates also the 
memory of the controversy with Lieutenant-Gov- 
ernor Golden over the retention in office of the 
senile Justice Horsmanden. The only new court 
created was the Gourt of Errors and Impeachment, 
to which the justices of the Supreme Court were 
nominated, sitting for the occasion with the sena- 
tors. In forming this, what may now seem extraor- 
dinary tribunal, Jay and his fellow members on 
the committee had doubtless before their eyes, not 
the House of Lords with its special judicial powers, 
but the Gouncil of the province, which possessed 
supreme appellate jurisdiction. Of this Gouncil, 
too, as of the new Gourt of Errors, the judges and 
chancellors were members, with power to argue, 
though not to vote, on appeals from their own 
judgments,^ Finally, few of the guarantees of 
popular rights embodied in the Gonstitution had a 
lineage of less than a hundred years ; for most of 
them are found in the " Gharter of Libertys and 
Privileges," the first act of the first Assembly of 
the province, in 1683, which was signed by the 
governor, though disallowed by the king. Towards 
the end of March, 1777, the draft of the new Gon- 
stitution, in Jay's handwriting, was reported by 
Duane from the committee. 

After the dispiriting battles of Long Island, and 
Washington's masterly retreat, came the mortify. 
^ Albany Law Journal, December 18, 1880, p. 489. 



CONSTRUCTIVE STATESMAN 75 

ing affair at Kip's Bay, the hasty retreat of Put- 
nam's forces from New York ; then followed the 
battle of Harlem Plains, reviving the spirit of the 
American troops, and that of White Plains, and 
Washington's retreat to the Hudson and into New 
Jersey. The convention, therefore, was transact- 
ing its business under the stress of unparalleled 
disadvantages. " In fact, such was the alarming 
state of affairs, that at certain periods the conven- 
tion was literally driven from pillar to post, while 
it had alternately to discharge all the various 
and arduous duties of legislators, soldiers, negotia- 
tors, committees of safety, committees of ways and 
means, judges and jurors, fathers and guardians 
of their own families flying before the enemy, 
and then protectors of a beloved commonwealth." ^ 
Only a few days before, it had been necessary to 
allow members to smoke in the convention cham- 
bers, " to prevent bad effects from the disagreeable 
effluvia from the jail below." ^ 

The Constitution, as drafted, was discussed sec- 
tion by section, and passed with but few modifi- 
cations or additions ; and of these Jay moved a 
large proportion. A section providing for voting 
by ballot was struck out on motion of Gouverneur 
Morris, but some days later Jay carried an amend- 
ment which ordered that so soon as practicable 
after the war all elections should be by ballot, 
though the legislature might at any time after a 

1 Proceedings and Debates of Const. Conv. of 1821, p. 692. 
* Journals of Prov. Cong., etc. i. 842. 



76 JOHN JAY 

fair trial renew the practice of viva voce voting.' 
It was under this clause that the first law was 
framed in New York, authorizing a secret ballot 
in 1778, and so successful did it prove that nine 
years later it was extended to aU elections of state 
officers. Such a measure was certainly never pro- 
posed in the interest of aristocracy ! 

The most prolonged debate of the session was 
upon the question of religious toleration, over the 
important clause that " the free toleration of reli- 
gious profession and worship without diminution 
or preference shall forever hereafter be allowed 
within the State to all mankind." This charter 
of freedom of conscience was one of the priceless 
heirlooms bequeathed to New York by New Nether- 
land, which, almost alone among the colonies, had 
never listened to the denunciations of fanaticism, 
had never lighted the fires of persecution. In Jay 
the old Huguenot blood still ran hotly, thrilling 
him with memories of Pierre Jay driven from La 
Rochelle, of Bayards and Philipses seeking refuge 
in Holland and Bohemia from the long arm of the 
papacy. The power of the Church of Rome he 
knew and feared ; he urged, accordingly, amend- 
ment after amendment to except Roman Catholics 
till they should abjure the authority of the pope 
to absolve citizens from their allegiance and to 
grant spiritual absolution. The result of his ob- 
jections was the adoption of a proviso " that the 
liberty of conscience hereby granted shall not be 

^ Journals of Prov. Cong. i. 866. 



CONSTRUCTIVE STATESMAN 77 

so construed as to excuse acts of licentiousness or 
justify practices inconsistent with the safety of 
the State." ^ When the question of naturalization 
came up for discussion, Jay renewed the same 
fight, and secured the amendment, sufficient for 
public security though less stringent than he de- 
sired, that before naturalization all persons shall 
" abjure and renounce all allegiance to all and 
every foreign king, prince, potentate, and state, in 
all matters ecclesiastical as well as civil." ^ The 
wording of this clause brings out, perhaps. Jay's 
motive in this controversy. With him it was not 
a religious but a political question. It was not 
Romanism as a religion that he feared, but Ro- 
manism as an imperium in imperio. That he was 
not a bigot was shown clearly when in July, 1775, 
the Provincial Congress forwarded to their dele- 
gates in the Continental Congress a " plan of 
reconciliation," protesting, among other things, 
"against the indulgence and establishment of 
popery [by the Quebec Act], all along their in- 
terior confines." To the answer of the delegates 
to the Provincial Congress Jay added this signifi- 
cant clause : that they thought best to make no 
reference to the religious article, preferring to 
bury " all disputes on ecclesiastical points, which 
have for ages had no other tendency than that of 
banishing peace and charity from the world." ^ 

^ Journals of Prov. Cong. i. 860. 

2 Ibid. i. 846. 

^ Theo. Roosevelt, Life of Gouverneur Morris, pp. 42, 4.3. 



78 JOHN JAY 

The Council of Appointment was constituted on 
Jay's motion ; but though the credit or misfortune 
of its creation is attributed to him, the measure 
was really a compromise, the extremists on one side 
proposing that the governor should have sole power 
of appointment, — a sound principle, but obnoxious 
to the democratic convention, — while those on the 
other side insisted upon confirmation by the legis- 
lature.^ 

That acts of attainder (which were limited to 
offenses committed before the termination of the 
war) should not work corruption of blood ; and 
that the State should assume the protection of the 
Indians within its boundaries, were humane pro- 
visions due to Jay. And just before the final vote, 
he moved a further clause that was adopted, the 
significance of which has been explained,^ prohibit- 
ing the institution of any court " but such as shall 
proceed according to the course of the common 
law." 3 

On April 17, 1777, his mother died, and Jay 
hastened to Fishkill to attend the funeral and com- 
fort the family. During his absence, on a Sunday, 
the Constitution was adopted ; it was hurriedly 
printed, and published April 22 by being read 
from a platform in front of the court-house at 
Kingston. Like all the early constitutions, except 

^ Journals of Prov. Cong. i. 377. To R. R. Livingston and 
Gouverneur Morris, April 29, 1777, Jay MSS. 
2 Supra, p. 73. 
^ Journals of Prov. Cong. i. 882. 



CONSTRUCTIVE STATESMAN 79 

that of Massachusetts, it was never submitted to 
the people ; the election of delegates for the ex- 
press purpose of framing a constitution being 
deemed a ratification in advance. Jay was at once 
placed on a committee for organizing the new form 
of government. Under the plan of organization, 
fifteen persons, including Jay, were created a 
Council of Safety " with all the powers necessary 
for the safety and preservation of the State, until 
a meeting of the legislature," and with instructions 
to administer the oath of office to the governor, 
when elected. Robert R. Livingston was ap- 
pointed chancellor, John Jay chief justice, and 
others were appointed judges, sheriffs, and clerks, 
to act pro tempore till the institution of the new 
government, a period, as it happened, of some six 
months. An act of grace was drafted by Jay in 
committee, granting full pardon to any delinquent 
or traitor on his producing before the Council of 
Safety or the governor a certificate of subscrip- 
tion to the oath of allegiance. On further motion 
of Jay, the resignation by General Clinton of his 
command of the militia was not accepted. The 
thanks of the convention were then voted to the 
New York delegates in Congress ; and the con- 
vention dissolved, May 13, ordering the Council of 
Safety to assemble at the same place " to-morrow 
morning at nine o'clock." ^ This was the close of 
that memorable convention, whose deliberations, 
said Chancellor Kent, " were conducted under the 

^ Journals of Prov. Cong. i. 931. 



80 JOHN JAY 

excitement of great public anxiety and constant 
alarm ; and that venerable instrument, which was 
destined to be our guardian and pride for upwards 
of forty years, was produced amidst the hurry and 
tumult of arms." ^ In all this turmoil Jay and 
his fellow f ramers of the Constitution were calm 
and collected ; inspired by the practical, precedent 
regarding spirit of the common law, they retained 
all that experience had approved, and adjusted 
what they added of new to harmonize with the old ; 
therefore it was that the Constitution remained in 
force for over forty years, and then, " with some 
minor modifications, the extension of suffrage and 
the concentration of more power in the governor, 
. . . continued substantially unchanged until 1846." 
Subsequent changes have been in the direction of 
limiting the power of the legislature, and providing 
for the new problems presented by the sudden de- 
velopment of cities. One obvious defect was the 
failure to make provision for constitutional amend- 
ment.2 Many things were omitted, which Jay es- 
pecially regretted, — a direction that all officers 
should swear allegiance ; a prohibition of domestic 
slavery ; and a clause " for the support and encour- 
agement of literature." ^ "I wish," he wrote to 
Morris, April 14, 1778, " you would write and pub- 
lish a few civil things on our Constitution, censur- 

1 Kent, Discourse before the N. Y. Hist. Soc, December 6, 
1828, p. 5. 

2 Dougherty, Pol. Science Quart., September, 1888, p. 494 et 
passim. 

8 Jay's Jay, i. 69. 



CONSTRUCTIVE STATESMAN 81 

ing, however, an omission in not restraining the 
Council of Appointment from granting offices to 
themselves." ^ In spite of defects, however, the 
Constitution received general praise. " I believed 
it would do very well," ^ was John Adams's cold 
expression, which meant, however, much more than 
it said. " Our Constitution," Jay wrote to Ganse- 
voort, " is universally approved, even in New Eng- 
land, where few New York productions have credit. 
But unless the government be committed to proper 
hands it will be weak and unstable at home and 
contemptible abroad." ^ It was at that time " gen- 
erally regarded as the most excellent of all the 
American constitutions," * of which it was the fifth 
to be adopted ; and by a writer whose knowledge 
of the early constitutional history of the country 
gives weight to any statement of his, however un- 
susceptible of proof, it is asserted to have been 
essentially the model of the national government 
under which we live.^ 

For the next six months the government of the 
State was in the hands of the Council of Safety. 
They directed the release or confinement of sus- 
pected persons ; regulated the prisons ; conferred 
with the Continental Congress on measures of de- 
fense ; and provided for the coming elections. Jay 
prepared a commission for holding courts of oyer 

1 Jay MSS. 

2 John Adams's Works, x. 410. 
8 June 5, 1777, Jay MSS. 

* John Alex. Jameson, Constitutional Convention, 4tli ed. § 152. 
^ John Austin Stevens, Mag. Am. Hist., July, 1878, p. 387. 



82 JOHN JAY 

and terminer; reported from a committee rules 
for the reorganization of the Fleet prison ; drafted 
letters to the New York delegates at Philadelphia 
concerning the revolt in the northeast, and was 
forthwith added to the Committee on Intelligence 
to discuss with General Schuyler at headquarters 
the measures requisite for its suppression.^ 

Jay was asked more than once to become a can- 
didate for governor; but he steadily refused, for 
the reasons which he stated as early as May 16 : 
" That the office of the first magistrate of this State 
will be more respectable as well as more lucrative, 
and consequently more desirable than the place I 
now fill, is very apparent. But . . . my object in 
the course of the present great contest neither has 
been, nor will be, either rank or money. I am 
persuaded that I can be more useful to the State 
in the office I now hold than in the one alluded to, 
and therefore think it my duty to continue in it." 
General Schuyler seems to have been the candidate 
of the Council of Safety, as he certainly was Jay's ; 
but on July 9 the people elected the burly, mag- 
netic, less aristocratic Clinton. " I hope," Schuyler 
magnanimously wrote to Jay, " General Clinton's 
having the chair of government will not cause any 
divisions amongst the friends of America, although 
his family and connections do not entitle him to so 
distinguished a predominance ; yet he is virtuous 
and loves his country, has abilities and is brave, 
and I hope he will experience from every patriot 

1 Journals of the Prov. Cong. i. 948-1019. 



CONSTRUCTIVE STATESMAN 83 

what I am resolved he shall from me, support, coun- 
tenance, and comfort."^ All New York at this 
time, outside the British pale, was Whig ; but, as 
this letter shows, there was already a divergence 
between the more democratic and the less demo- 
cratic Whigs, though all were equally patriotic and 
republican. The council at once resolved that they 
were not " justified in holding and exercising any 
powers vested in them longer than is necessary," 
and requested General Clinton to appear and take 
the oath of office. But the governor elect was hold- 
ing Fort Montgomery and expecting a sudden at- 
tack. " The enemy have opened the ball in every 
quarter," wrote Schuyler to Jay a few days earlier. 
" It is pretty certain that they will pay us a visit 
from the westward as well as from the north. I 
am in much pain about Ticonderoga ; little or no- 
thing has been done there this spring." ^ The evac- 
uation of Ticonderoga followed swiftly. "I dare 
not speak my sentiments," wrote Schuyler again, 
July 14, from Fort Edward. " In the Council of 
Safety, to your secrecy, I can confide them. They 
are, that it was an ill-judged measure, not war- 
ranted by necessity, and carried into execution with 
a precipitation that could not fail of creating the 
greatest panic in our troops and inspiriting the en- 
emy." ^ For the moment, as Burgoyne continued 
his southward march, the war was close indeed. 
Jay's family was alarmed, especially his father. 

1 July 14, 1777, Jay MSS. 2 j^^e 30, 1777, Jay MSS. 
3 Jay MSS. 



84 JOHN JAY 

"General Sullivan with 2000 Continental troops 
are now encamped in the town of Fishkill," is the 
news sent by Frederick Jay, July 18. " This affair 
makes the old gentleman imagine that the enemy 
will certainly attempt the river. I could wish he 
was as easy about the matter as myself." ^ Quite 
as easily, but less cynically, Mrs. Jay had described 
just such an alarm in March at Peekskill : " This 
very moment the doctor came into the room, his 
looks bespeaking the utmost discomposure. ' Bad 
news, Mrs. Jay.' ' Aye, doctor ; what now ? ' ' The 
regulars, madam, are landed at Peekskill ; my own 
and other wagons are pressed to go instantly down 
to remove the stores.' Wherever I am, I think 
there are alarms ; however, I am determined to re- 
member your maxim : prepare for the worst and 
hope the best." ^ 

The legislature was summoned by the council 
to convene at Kingston on the 1st of August. It 
is curious to notice, in the light of subsequent his- 
tory, that Jay " casually hinted at holding the first 
session of the legislature at Albany," but found 
" a general disinclination to it." " Some object," 
he wrote to Schuyler, "to the expense of living 
there, as most intolerable, and others say that, 
should Albany succeed in having both the great 
officers, the next step will be to make it the capital 
of the State." ^ On July 31, the day before that 

1 To John Jay, March 23, 1777, Jay MSB. 

2 Ibid. 

3 June 20, 1777, Jay MSS. 



CONSTRUCTIVE STATESMAN 85 

set for the meeting of the legislature, General Clin- 
ton, in the presence of the Council of Safety, took 
the oath of office, " clothed in the uniform of the 
service, and sword in hand, standing on the top 
of a barrel in front of the court-house in King- 
ston."! 

A hurried expedition was made by Jay with 
Gouverneur Morris, by order of the council, to 
the headquarters of Washington, to consult about 
the means of defense, and to urge the necessity of 
providing garrisons for the forts in the Highlands, 
as the term of the militia stationed there was about 
to expire. Soon after his return, on September 9, 
he opened the first session of the Supreme Court 
of the State at Kingston. From a letter of Jay's, 
it appears that this was not the first official func- 
tion of the judicature since the adoption of the 
Constitution. " A court is directed to be held in 
Dutchess," he wrote to Mrs. Jay, June 6, " and I 
expect the like order will be given for the other 
counties, so that should you not hear from me so 
frequently ascribe it to my absence from here." ^ 
The Supreme Court, as has been said, was merely 
the old provincial Supreme Court continued. " The 
minutes of this term appear in the same old vol- 
ume in use under the crown. Between the minutes 
for April term, 1776, and those for September 
term, 1777, are a few blank leaves, but there is 
no written indication of the change of government 

1 John A. Stevens, Mag. Am. Hist., July, 1878, p. 387. 

2 Jay MSS. 



86 JOHN JAY 

that had taken place. Indeed, it would be impos- 
sible to learn from the records of the September 
term what had happened in the interval, were it 
not for the title of the first cause on the docket : 
the party plaintiff is ' The People of the State of 
New York,' and no longer ' Dominus Rex.' In 
all other respects the minutes disclose no immedi- 
ate change in the procedure, practice, or adminis- 
tration of the court." ^ At Kingston, September 
9, Jay, as chief justice pro tern/pore^ delivered an 
address to the grand jury of Ulster County, which 
for many years afterward was regarded as one of 
the classics of the Revolution. " It affords me, 
gentlemen," was the impressive opening, " very 
sensible pleasure to congratulate you on the dawn 
of that free, mild, and equal government which 
now begins to break and rise from amid those 
clouds of anarchy, confusion, and licentiousness 
which the arbitrary and violent conduct of Great 
Britain had spread, in greater or less degree, 
throughout this and the other American States. . . . 
Vice, ignorance, and want of vigilance will be the 
only enemies able to destroy it. Against these be 
forever jealous." At that moment, Burgoyne was 
approaching Albany and had already reached the 
Hudson, while New York city and the whole south- 
ern tier of counties. New York, Westchester, Rich- 
mond, and all Long Island, the richest and most 

^ Fowler, " Const, of the Supreme Court," Alh. haw Journal. 
2 His formal commission as chief justice under the Constitu- 
tion was not made out till a few days later. 



CONSTRUCTIVE STATESMAN 87 

populous in the State, were in almost undisturbed 
possession of England. The extreme northeastern 
counties, Gloucester and Cumberland, also, were 
in half-declared revolt. Within the British lines 
Judge Ludlow still exercised the jurisdiction of 
the Supreme Court of the province; and these 
two governments continued till the evacuation, No- 
vember 25, 1783. It naturally followed that the 
Supreme Court of the State, during Jay's term as 
chief justice, had little important business. Dur- 
ing the Revolution the court never sat in banc. 
As, moreover, no reports are published of the deci- 
sions for the first twenty-two years of its existence, 
scarcely anything can be safely said of Jay as chief 
justice of New York. 

" I am now engaged," he wrote to Morris, April 
29, 1778, " in the most disagreeable part of my 
duty, trying criminals. They multiply exceed- 
ingly. Robberies become frequent ; the woods af- 
ford them shelter, and the Tories food. Punish- 
ment must of course become certain, and mercy 
dormant, — a harsh system, repugnant to my feel- 
ings, but nevertheless necessary." ^ In those days 
the inconveniences of life were many even for a 
judge at Albany. " Had it not been for fish," ac- 
cording to Jay, " the people of this town would 
have suffered for want of food, occasioned by the 
refusal of the farmers to sell at the stipulated 
prices. The few goods there were in the town 
have disappeared. I have tried, but have not been 
^ Jay's Jay, ii. 23. 



88 JOHN JAY 

able, to get a pair of shoes made." ^ In the sum- 
mer he seems to have been much with the gov- 
ernor, assisting him in official correspondence, 
and was constantly applied to, but in vain, to exert 
his influence with him in behalf of Tories or their 
friends who wished passports to New York. In 
the autumn Jay retired to the farm at Fishkill for 
a little much-needed rest. " I have not been with- 
out the bounds of the farm since my return to it," 
he wrote his wife in August ; " and to tell you the 
truth, were you and our little boy here, I should 
not even wish to leave it this year, provided it 
would be all that time exempted from the visita- 
tion of both armies. This respite from care and 
business is extremely grateful. ... Its duration, 
however, will probably be short, as the number of 
persons charged with capital offenses now in con- 
finement requires that courts for their trial be 
speedily held. Delays in punishing crimes encour- 
age the commission of crime. The more certain 
and speedy the punishment, the fewer will be the 
objects." 2 While still at Fishkill Mr. Jay re- 
ceived General Washington, whom his father had 
entertained three years before at Rye, and with 
whom in the service of the State he had himself 
conferred frequently on military matters. The ob- 
ject of the visit was to discuss a plan, then before 
Congress, for the invasion of Canada with the aid 
of France, and both agreed in disapproving it. 

1 To Mrs. Jay, April 9, 1778, Jay MSS. 

2 August 3, 1778, Jay MSS. 



CONSTRUCTIVE STATESMAN 89 

Here, too, the chief justice probably wrote the 
paper, signed " A Freeholder," on the abuses of 
impressment by the military, " without any law, 
but that of the necessity of the case, which cloaks 
as many sins in politics as charity is said to do in 
religion." " These impresses," was the conclusion, 
" may, I think, easily be so regulated by laws, as 
to relieve the inhabitants from reasonable cause of 
complaint, and yet not retard or embarrass the 
service." 

As chief justice. Jay was ex officio a member of 
the Council of Revision, which sat from time to 
time at Poughkeepsie, and which this spring, on 
objections drafted by him, vetoed many anti-Tory 
bills, and bills perpetuating Revolutionary methods. 
The first of these bills was " an act requiring all 
persons holding offices or places under the govern- 
ment of this State to take the oaths herein pre- 
scribed and directed ; " and a new law was subse- 
quently passed so as to avoid Jay's objections.^ 
A number of members of the legislature had 
formed themselves into a council of safety, and 
declared an embargo against the exportation of 
flour and grain from the State. A bill to continue 
this embargo was vetoed, because it recognized the 
Council of Safety, "when in fact all legislative 
power is to be exercised by the immediate repre- 
sentatives of the people in Senate and Assembly 
in the mode prescribed by the Constitution ; for 

1 February 3, 1778. Alfred B. Street, The Council of Revision, 
p. 201. 



90 JOHN JAY 

though the people of this State have, heretofore, 
been under a necessity of delegating their author- 
ity to provincial congresses and conventions, and 
of being governed by them, and councils, and 
committees of safety by them from time to time 
appointed, yet . . . these were mere temporary 
expedients to supply the want of a more regular 
government, and to cease when that prescribed by 
the Constitution should take place." ^ March 25, 
the council vetoed a sweeping bill to disfranchise 
and disqualify for office any one who since July 9, 
1776, had before any committee of safety, or con- 
spiracy, acknowledged the sovereignty of Great 
Britain, or denied the authority of this or any 
former government of this State, or given aid or 
comfort to the enemy, etc. The reasoning of the 
council was strong and concise ; the bill is uncon- 
stitutional, " because the Constitution of this State 
hath expressly ordained that every elector, before 
he is admitted to vote, shall, if required, . . . take 
an oath ... of allegiance to the State, from 
whence ... it clearly follows that every elector 
who will take such oath has a constitutional right 
to be admitted to such vote, and therefore that the 
legislature have no power to deprive him thereof, 
more especially for acts by him done prior to the 
date of the said Constitution, which was the 20th 
day of April, 1777, of which acts the convention, by 
whom that Constitution was made, had ample cog- 

1 February 20, 1778. Street, The Council of Revision, pp. 203, 
204. The bill pasaed finally with slight amendments. 



CONSTRUCTIVE STATESMAN 91 

nizance." ..." Because the said disqualifications 
. . . savor too much of resentment and revenge to 
be consistent with the dignity or good of a free 
people. Because the said disqualifications (sup- 
posing them to be constitutional and proper) are 
not limited to take place only on the conviction of 
the offenders in due course of law." ^ Such, how- 
ever, was the intensity of party feeling, that this 
bill was passed over the veto. 

The same day the council vetoed a bill " for 
raising moneys," by which traders and manufac- 
turers were to be taxed X50 on every XIOOO gained 
in their occupations since September 12, 1776. 
This was held unconstitutional, as violating "the 
equal right to life, liberty, and property," because 
" the public good requires that commerce and man- 
ufactures be encouraged," and because it is " repug- 
nant to every idea of justice thus, without any open 
cha^e or accusation of offense, and without trial, 
indiscriminately to subject numerous bodies of 
free citizens, distinguished only by the appellation 
of traders or manufacturers, to large penalties 
not incurred on conviction of disobedience to any 
known law, and couched under the specious name 
of a tax." 2 As late as November 5, a similar bill 
was vetoed, giving the assessors authority to tax at 
discretion those who, " taking advantage of the 
necessities of their country, have, in prosecuting 
their private gain, amassed large sums of money 

1 Street, The Council of Revision, pp. 210, 211. 

2 Ibid. pp. 212, 213. 



92 JOHN JAY 

to the great prejudice of the public." Jay's objec- 
tions were based on broad constitutional grounds : 
" An equal right to life, liberty, and property is a 
fundamental principle in all free societies and 
states, and is intended to be secured to the people 
of this State by the Constitution thereof; and 
therefore no member of this State can constitu- 
tionally or justly be constrained to contribute 
more to the support thereof than in like propor- 
tion to the other citizens, according to their respec- 
tive estates and abilities." ..." To tax a faculty 
is to tolerate it, vice not being in its nature a sub- 
ject of taxation." ..." By the principles of the 
Constitution, . . . except in cases of attainder, . . . 
no citizen is liable to be punished by the State but 
such as have violated the laws of the State. . . . 
Supposing, therefore, that the persons aimed at in 
this bill have acquired riches immorally, yet if 
they have acquired them in a manner which the 
legislature has not thought proper to prohibit, 
they are not obnoxious to human punishment, how- 
ever much they may be to divine vengeance. But 
if, on the other hand, these persons have acquired 
riches in a manner prohibited by the law of the 
land, they ought to be tried and punished in the 
way directed by these laws, and not subjected to 
double punishment." ^ 

These words, so full of reasonableness, love of 
legality, and hatred of injustice, may well close our 
account of the period that is here roughly termed 
1 Street, The Council of Revision, pp. 214, 215. 



CONSTRUCTIVE STATESMAN 93 

that of Jay's constructive statesmanship. Years 
are to pass before we find him again in the service 
of his State ; but from that day to this New York 
has borne upon its fundamental law the deep im- 
pression of his character. 



CHAPTER V 

PRESIDENT OF CONGRESS 
1779 

For many years the boundaries between New 
York, New Hampshire, and Massachusetts had 
been a source of controversy and confusion. The 
inhabitants of the disputed territory were unusu- 
ally hardy and independent, and as early as 1772 
and 1773 there were riots in Gloucester and Cum- 
berland counties against claimants of land under 
title from New York. Agents were sent to Eng- 
land with petitions to the crown, and the case on 
behalf of New York was prepared by Duane and 
included in an elaborate report to the Assembly. 
The breaking out of the Revolution prevented any 
settlement of the question at that time. But the 
Declaration of Independence was utilized by Ethan 
Allen and his followers as a good opportunity to 
declare the independence of the territory which 
they now began to call Vermont. In January, 
1777, Vermont declared itself a free and independ- 
ent State, and a convention of delegates met at 
Windsor, July 2, to frame a constitution. Ethan 
Allen wrote a vigorous pamphlet vindicating the 



PRESIDENT OF CONGRESS 95 

right of Vermont to statehood. " There is quaint- 
ness, impudence, and art in it," wrote Jay to Mor- 
ris.i " Strange," replied Morris, " strange that 
men in the very act of revolting should so little 
consider the temper of revolters."^ The process 
of New York courts ceased to run in the north- 
eastern counties. Troops were dispatched to queU 
the outbreak, but met with no success. The New 
York Convention at last applied through their del- 
egates to Congress, which appointed a committee 
upon the letters from the convention, and a peti- 
tion from the inhabitants of the New Hampshire 
Grants, as they were technically described. On 
the report of the committee, it was resolved that 
the Declaration of Independence in no way justi- 
fied Vermont in separating from New York, and 
that Congress, representing the thirteen States, 
could not countenance anything injurious to the 
rights of any one of them. 

Burgoyne's expedition was taken advantage of 
by the Vermonters to coerce the States by coquet- 
ting with the enemy ; and for a time the situation 
was full of menace. " General Burgoyne," wrote 
H. B. Livingston to Jay, June 17, " has sent a 
summons to the people of the Grants to meet Gov- 
ernor Skene at Castletown, to be there acquainted 
with the terms on which they shall hold their pro- 
perty, and threatening with immediate death all 
who refuse their attendance. General Schuyler, 
in answer to this, has sent a proclamation declar- 
1 Sparks, Morns, i. 210. 2 j^^^^ i_ 212. 



96 JOHN JAY 

ing that those who comply with Burgoyne's sum- 
mons shall be punished as traitors. Many have 
taken protection. Those who are discovered are 
committed to gaol." ^ What was originally merely 
an agrarian rising against claimants under legal 
titles from a distant and disputed government was 
thus rapidly becoming a serious political question. 
Finally the New York legislature resolved that 
there existed " a special case," in the sense of the 
Constitution, that would justify the appointment 
of Jay to Congress without vacating his seat on 
the bench. He was accordingly charged with the 
special mission of urging on Congress a settlement 
of the territorial claims of his State, and thus 
returned to the scene of his early labors. 

In Congress, at the moment, the conduct of Silas 
Deane, recently recalled from France, was the sub- 
ject of long and vehement debate. Among other 
questions involved was that of the contracts for 
war material with the versatile, well-disposed, but 
devious Beaumarchais. Arthur Lee, Deane's fel- 
low commissioner, misled by the secrecy adopted 
by the French government to avoid complications 
with England, alleged incorrectly that the arms 
were the free gift of France, and attacked Deane's 
integrity. " Many persons whom you know are 
very liberal of iUiberality," Morris had written to 
Jay in August. " Your friend Deane, who hath 
rendered the most essential services, stands as one 
accused. The storm increases, and I think some 
1 Jay MSS. 



PRESIDENT OF CONGRESS 97 

one of the tall trees must be torn up by the roots." ^ 
" I think our friend D.," wrote Robert Morris, 
"has much public merit, has been ill used, but 
will rise superior to his enemies." ^ Deane was a 
gentleman of breeding and education, with easy 
diplomatic manners, who, at the beginning of the 
Revolution, was chairman of the Committee of 
Safety in Connecticut, and a member of the first 
Continental Congress. When he was sent abroad 
as agent of the secret committee, it was with Jay 
that he regularly corresponded. In Paris he found 
himself " without intelligence, without orders, and 
without remittances, yet boldly plunging into en- 
gagements and negotiations, hourly hoping that 
something will arrive from America." The truth 
of his account of his dealings with Beaumarchais 
is now fully proved. It was then inconsistently 
charged that the articles sent were of poor quality, 
and that they were gifts of France not intended to 
be paid for. But Deane had written at the begin- 
ning : " Mons. Beaumarchais has been my minister 
in effect, as this court is extremely cautious, and I 
now advise you to attend carefully to the articles 
sent you, as I could not examine them here. I was 
promised they should be good, and at the lowest 
prices."^ Only a year before. Captain Nicholas 
Rogers, in transmitting to Jay some of Deane's 
letters, incidentally gave testimony to Deane's wor- 

1 G. Morris to Jay, August 16, 1778, Jay MSS. 

2 September 8, 1778, Jay MSS. 

3 To Jay, December 3, 1776. 



98 JOHN JAY 

thiness at that time. "You will use a certain 
liquid (that Mr. Deane told me you had) upon the 
margin of the printed sheets so as to make legible 
what Mr. Deane has wrote ; should it not have its 
proper effect, which I am afraid of, as the letters 
were put into a tin box in a barrel of rum which 
was eat through, and I am afraid has damaged 
them, the enclosed letter is of the same contents. 
... I liv'd at Paris in the same house with Mr. 
Deane and had the Pleasure of being particularly 
intimate with him. ... I should be happy to in- 
form you and answer you any questions concerning 
the most of Mr. Deane's transactions the last sum- 
mer, which he perform'd with the warmth of the 
most zealous of Patriots." ^ That Deane subse- 
quently, embittered, perhaps, by persecution, be- 
came, in Jay's opinion, a traitor to his country, 
ought not to be allowed to affect one's judgment 
of his antecedent conduct. Certainly, with the 
knowledge that he possessed at the time, Jay was 
in honesty bound to defend and sustain his friend, 
and he did so ; thus winning unawares the appro- 
bation of the French envoy, who was personally 
and officially interested in the same cause. 

To the outspoken attacks of Lee, Deane at last 
responded by a bitter article in a newspaper com- 
menting on the character of Lee and the delay of 
Congress. In Congress and out of it the article 
created intense excitement. " Mr. President Lau- 
rens brought the newspaper with him to the House, 

1 June 4, 1777, Jay MSS. 









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PRESIDENT OF CONGRESS 99 

and from the chair proposed that it should be read, 
in order that it might become the subject of certain 
resolutions. The House not thinking it proper to 
come into that measure, he resigned the chair, say- 
ing that he could no longer hold it consistent with 
his honor. They were disgusted and adjourned. 
The next day his friends attempted to replace 
him, but did not succeed. A new president was 
elected." ^ Such is the colorless description of the 
stormy scene given by Jay, who was chosen the new 
president. 

Among the many congratulations Jay received, 
that from his wife, though touched with womanly 
regret, must have pleased him most : " I had the 
pleasure of finding by the newspapers that you are 
honor' d with the first office on the Continent, and 
am still more pleased to hear this appointment af- 
fords general satisfaction. ... I am very solicitous 
to know how long I am still to remain in a state of 
widowhood : upon my word I sincerely wish three 
months may conclude it ; however, I mean not to 
influence your conduct, for I am convinced that, 
had you consulted me as some men have their 
wives about public measures, I should not have 
been Roman matron enough to have given you 
so entirely to the public." ^ " Sally ! " was the 
old-fashioned reply, with sedate words still pulsat- 
ing with love and longing for home ; " SaUy ! the 
charms of this gay city would please me more if 
you partook of them. I am afraid to think of 
1 Jay MSS. 2 December 28, 1778, Jay MSS. 



100 JOHN JAY 

domestic happiness ; it is a subject which presents 
to my imagination so many shades of departed joys, 
as to excite emotions very improper to be indulged 
in by a person in my station, determined at every 
hazard to persevere in the pursuit of that great 
object to which we have sacrificed so much." ^ 

The history of Jay's presidency of Congress is 
too much that of the country to be written here. 
It is necessary to refer only to affairs especially 
intrusted to him. The condition of the currency 
was such as to cause the gravest anxiety. " Our 
money," wrote R. R. Livingston to Jay in Octo- 
ber, 1778, " is so much depreciated as hardly to be 
current, and, as a necessary consequence of this, 
our expenses have increased beyond all conception. 
According to a calculation which I have made, it 
costs as much to maintain the army two months 
now, as it did to maintain them for the whole of 
the year 1776. It is absolutely necessary that we 
should get out of this war soon."^ Accordingly, 
as one of his first duties. Jay was directed to write 
a letter to the States explaining the action of Con- 
gress in limiting the issue of paper money, and 
calling on the States for funds to meet current 
expenses. If the letter hardly showed a thorough 
knowledge of the principles of finance, it must be 
remembered that few statesmen of that day had 
such knowledge, and it at least answered the pur- 
poses of the moment. It stated simply the causes 

1 January 31, 1779, Jay MSS. 

2 October 8, 1778, Jay MSS. 



PRESIDENT OF CONGRESS 101 

of depreciation, which was held, in this case, to be 
artificial, or due to lack of confidence in the gov- 
ernment, and not natural, due to excessive issue. 
The rest of the letter aimed to restore public confi- 
dence by affirming the honest intentions of Con- 
gress to fulfill their engagements, and proving their 
ability to do so by reference to the enormous un- 
developed wealth of the country, and the indefinite 
increase of population to be expected from immi- 
gration. It is easy to notice now that the amount 
of paper then issued was far in excess of what could 
possibly be maintained at par in the natural course 
of business. But a bankrupt in need of money 
cannot afford to be logical, and an appeal to an 
optimistic patriotism was then the only resource. 
In later life, to Jay, as to many other Federalists, 
the future of the country seemed dark and unpro- 
mising ; but now the optimistic close of his letter to 
the States only expressed his own serious confidence 
that the evils of the present were temporary, and 
that dawn was soon to break. " Calm repose and 
the sweets of undisturbed retirement," he wrote to 
Washington, " appear more distant than a peace 
with Britain. It gives me pleasure, however, to 
reflect that the period is approaching when we shall 
be citizens of a better ordered state, and the spend- 
ing of a few troublesome years of our eternity in 
doing good to this and future generations is not to 
be avoided or regretted. Things will come right, 
and these States will he great and flourishing. 
The dissolution of our government threw us into a 



102 JOHN JAY 

political chaos. Time, wisdom, and perseverance 
will reduce it into form. ... In this work you are, 
in the style of one of your professions, a master- 
builder, and God grant that you may ever continue 
a free and accepted mason." ^ 

The matter of Vermont was, of course, Jay's 
especial charge, and this proved extremely difficult 
of adjustment. Congress was reluctant to inter- 
vene in any local territorial dispute, however im- 
portant. There were many different interests to 
reconcile, and all the members of Congress were 
not disinterested. " There is as much intrigue in 
this State House," wrote Jay to Washington, " as 
in the Vatican, but as little secrecy as in a boarding- 
school." 2 For the greater part of a year there was 
no progress to report. At length, in August, 1779, 
he advised the legislatures of New York and New 
Hampshire to authorize Congress to settle the line 
between them, and the legislature of New York, 
in addition, to empower Congress to adjust their 
private controversy with the people of Vermont.^ 
This done. Jay moved and carried resolutions sub- 
mitting the disputed boundaries to arbitration by 
commissioners representing New York, New Hamp- 
shire, and Vermont. This explicit recognition of 
the new claimant to statehood was a surrender of 
the technical claims of New York, which he justified 
with characteristic common sense in a letter to Gov- 

1 April 21, 1779, Jay MSS. 

2 April 26, 1779, Jay MSS. 

8 To Governor Clinton, August 27, 1779. 



PRESIDENT OF CONGRESS 103 

ernor Clinton : " In my opinion it is much better 
for New York to gain a permanent peace with her 
neighbors by submitting to these inconveniences, 
than, by an impolitic adherence to strict rights, and 
a rigid observance of the dictates of dignity and 
pride, remain exposed to perpetual dissensions and 
encroachment." ^ Almost the last official act of 
Jay as delegate was the drafting of bills embodying 
resolutions of Congress that met the assent of all 
three States ; and his task was apparently accom- 
plished. But the Congress had no power of coer- 
cion, and the dispute remained open till after the 
ratification of the Constitution, when it was settled 
forever, somewhat ignominiously, by the transfer 
of 130,000 from the treasury of Vermont to the 
treasury of New York. 

Jay was continued in Congress by special vote 
of the New York legislature till October 15 ; but 
he was already contemplating retirement from pub- 
lic life, so neglected had been his private affairs, 
so necessitous had become the condition of his 
family. On August 10 he gave in his resignation of 
the chief justiceship of New York and insisted on 
its acceptance, simply remarking : " I shall return 
to private life, with a determination not to shrink 
from the duties of a citizen. During the continu- 
ance of the present contest I considered the public 
as entitled to my time and services." Now that 
our victory is assured, was perhaps the innuendo, 
I may be honorably discharged. " Popularity," 

1 Jay's Jay, i. 92. 



104 JOHN JAY 

he repeated a few days later to Clinton, " is not 
among the number of my objects. A seat in Con- 
gress I do not desire, and as ambition has in no 
instance drawn me into public life I am sure it will 
never induce me to continue in it. Were I to con- 
sult my interest I should settle here and make a 
fortune ; were I guided by inclination I should 
now be attending to a family who, independent of 
other misfortunes, have suffered severely in the 
present contest." ^ So dangerous was the country 
about Fishkill that Peter Jay, at a hint of a visit 
from his son, urged him not to come : for " gangs 
of villains make frequent excursions from our 
neighboring mountains for prey," and might find 
his " person too tempting an acquisition to be neg- 
lected." 2 The old merchant was indeed much 
broken and in no little distress : " I am," he la- 
mented, " unfortunately too much reduced to at- 
tend effectually to business. . . . I 've not yet got 
an inch of ground ploughed for wheat. ... I have 
no prospect yet of getting any salt for salting my 
beef and pork this fall, nor have I anybody to look 
out for me. Hard times ! " ^ His sister Eve had 
married a clergyman, who died soon afterwards, 
leaving her in extreme poverty ; and she and her 
son, Peter Jay Munro, were taken entire care of 
by Jay, at a time when he was complaining to Gov- 
ernor Clinton that the New York delegates were 
" not allowed sufficient to maintain, or rather sub- 

1 August 27, 1779, Jay MSS. « jay MSS. 

8 September 1, 1779, Jay MSS. 



PRESIDENT OF CONGRESS 105 

sist, themselves." ^ Her gratitude was adequate, 
and must have been overwhelming to Jay : " Give 
me leave, sir, to tell you that you are not only a 
kind brother, but a very affectionate father and 
husband to me, and a most tender father to my 
poor son." ^ Public duty, however, obliged him to 
leave to his brothers, Frederick and Sir James, the 
care of the family. 

Politicians have occasionally been known, per- 
haps, to avow a preference for a quiet home life in 
the country, with no over-keen desire to be taken 
at their word. But the sentiment was often on 
Jay's reticent but truthful lips at every period of 
his life ; and he proved his sincerity by his thirty 
years of voluntary retirement. The same story of 
simple tastes and strong affections is told by his 
letters written while president of Congress to his 
wife. She was at Persipiney, New Jersey, with 
her father, when Jay sat one night thinking of her 
in his room. " It is now nine o'clock, my fellow 
lodgers out, and, what seldom happens, I am per- 
fectly alone, and pleasing myself with the prospect 
of spending the remainder of the evening in writ- 
ing a letter to you. As it rains and snows there 
is less probability of my being interrupted, and for 
that reason I prefer it to moonshine or starlight." 
What a charming introduction, one might think, 
to a little volume of priceless gossip and confi- 
dences ! But no, the letter is only to say that he 

1 AvLgmt 27, 1779, Jay MSS. 

2 From Mrs. Munro, October 18, 1779. 



106 JOHN JAY 

loves her, and is lonely without her ; prudence for- 
bids any anecdotes, any news, for have not two of 
his letters just faUen " into the enemy's hands at 
Elizabeth Town " ? ^ "I esteem it a blessing," he 
writes again, " that (when absent from you) soli- 
tude is so far from being irksome, that I often 
court and enjoy it. Hence it is that, altho' few 
are more fond of society, I oftener walk and ride 
without than with company. There is a kind of 
satisfaction in being able, without any breach of 
politeness, to pursue one's own inclination, to ride 
as fast or as slow, to stop as short or as long, to 
take this or that road, as may be most agreeable. 
. . . In this unfriendly month [of March], Nature, 
you know, appears in a rude and dirty garb ; so 
that as yet I must be silent about ' lonely devious 
walks ' thro' ' verdant fields ' or ' shady groves ; ' 
nor would it be in season to say a word of ' gentle 
breezes,' ' melodious birds,' or ' the hum of bees 
inviting sleep sincere.' " ^ 

It was, however, more than twenty years before 
his modest wishes were gratified, and then she 
whom he loved so could not share his pleasure. 
Now a new and unsought appointment was be- 
stowed on him, full of new trials and not unex- 
pected disappointments ; and on October 1 Jay re- 
signed the chair of Congress, receiving a vote of 
thanks " in testimony of their approbation of his 
conduct," as he was passed on to labors in a new 
field. 

1 To Mrs. Jay, March 5, 1779. 2 To same, March 17, 1779. 



CHAPTER VI 

MINISTER TO SPAIN 

1779-1782 

The treaties with France, concluded February 
6, 1778, recognized American independence, and 
provided that, in case England should declare war 
against France, the two powers should make com- 
mon cause, and that neither of them should con- 
clude a truce or peace until the independence of 
the United States had been secured. Though Ver- 
gennes had declared three months before that no 
such treaty could be made without the consent of 
Spain, on account of the obligations of the Bourbon 
Family Compact, and the necessity of a Spanish 
alliance in the event of the war likely to be pre- 
cipitated, the treaty was not, in fact, communicated 
to Spain till after its signing ; but a secret clause 
was inserted providing for her accession to its 
terms. England, as was expected, regarded the 
treaty, long denied with a brazen face by the 
French minister at London, as an act of war, and 
for the next two years France was fighting Eng- 
land single-handed so far as European allies were 
concerned. The aid of Spain was essential, and to 



108 JOHN JAY 

gain this Vergennes, through his minister, Mont- 
morin, at Madrid, bent all his powers of artifice 
and persuasion. 

Charles III. of Spain hated the idea of another 
war, and wished only to end his days in peaee.^ 
He was a conscientious man and devoted to his 
family, and Louis XV. was his nephew ; but he 
was haughty, suspicious, and stubborn; he was 
piqued at being thought a tool of France, and the 
abrupt ending of the last war made him fear that, 
without a special guarantee, France, after drag- 
ging him into this new struggle, might again con- 
clude a separate peace, regardless of the interests 
of Spain.^ His minister, Florida Blanca, indig- 
nant at the American treaty, hindered in every 
way the early French naval expeditions, cleverly 
avoided explanations, and finally suggested that 
the only way to induce Spain to declare herself 
was by agreeing not to make peace without securing 
the restitution of Gibraltar, Florida, and Jamaica. 
In the mean while, with the notion of deceiving 
England tiU the time should be ripe for a sudden 
blow, he was playing the part of a mediator, and 
Lord "Weymouth was coquetting with him with 
dissimulation as deep as his own. 

This negotiation revealed the actual wishes of 
the two courts. France submitted, as her lowest 
terms, the political and territorial independence of 
the United States, the withdrawal of the English 

^ Vergennes to Montmorin, October 24, 1778, Doniol, iii. 24. 
^ Montmorin to Vergennes, Doniol, iii. 495, 497. 



MINISTER TO SPAIN 109 

commissionersliip from Dunkirk, a fair partition 
of the Newfoundland fisheries, according to the 
treaty of Utrecht, and, if possible, a modification 
of the navigation laws.^ Spain proposed in ad- 
dition that England should keep Canada and Nova 
Scotia, but that Spain should take so much of 
Florida as was necessary for the monopoly of the 
navigation of the Gulf of Mexico.^ The Spanish 
court, as Montmorin thought, exaggerating the 
prosperity and progress of the United States, 
deemed it essential to leave " seeds of division and 
jealousy between " them and England.^ That court 
was not only perfectly indifferent to the claims of 
the United States,^ but was convinced that in no 
long time they would become her enemies, and was, 
therefore, bent on keeping them from the Missis- 
sippi, and as far from her own colonies as possible. 
As neighbors, the Americans would be as objec- 
tionable as the English. When read in the light 
of these intentions, the word Florida becomes in- 
definitely comprehensive. Even the independence 
of America was objected to, and France was blamed 
for having guaranteed it. Would not a truce serve 
the purpose ? It was obvious that Spain was hold- 
ing off till France, no longer able to do without 

1 Vergennes to Montmorin, October 13, 1778, Doniol, iii. 551. 

2 Montmorin to Vergenne3, October 15, 1778, Doniol, iii. 556, 
557. 

^ Montmorin to Vergennes, October 19, 1778, Doniol, iii. 558, 
559. 

* Doniol, iii. 575. 



110 JOHN JAY 

her, would, at the dictation of Spain, submit to 
any terms of alliance, even the sacrifice of the sov- 
ereignty of the United States. France had now to 
modify her views, or to risk losing Spanish cooper- 
ation altogether.^ The terms of Spain, by chang- 
ing the objects of the war, might prolong it indefi- 
nitely ; but Vergennes had to accept even so hard 
a bargain, and, while complaining bitterly of the 
" gigantic pretensions " of Spain,^ he signed the 
treaty of Aranjuez, April 12, 1779. 

In this treaty is to be f oimd the key to the polit- 
ical situation in 1779 and during the three years 
following. By it Spain agreed to make no treaty 
with or concerning the United States without the 
participation of France ; if France should conquer 
Nova Scotia the fisheries were to be shared between 
them ; and neither party was to lay down arms till 
Gibraltar was secured to Spain, and to France the 
abolition of the English commissionership at Dun- 
kirk, or whatever other benefit she might chose 
instead.^ 

While the attitude of Spain remained still unde- 
termined, the state of public opinion in America 
was of course to France a matter of the first im- 
portance. If Congress should insist on the Mis- 
sissippi, Florida, and the western territories, all 
which were included in the Spanish conception of 
Florida, they ruined the possibility of either a sat- 

1 Doniol, iu. 576. 

2 Vergennes to the king, Doniol, iii. 588. 

3 De Circourt, p. 335. 



MINISTER TO SPAIN 111 

isf actory peace or a successful war, for Spain would 
then refuse to act either as mediator or ally. As 
president of Congress, Jay was present at the nu- 
merous meetings of the Committee on Foreign Af- 
fairs, when Gerard urged the necessity of moderat- 
ing their claims to meet the views of Spain. Soon 
after Jay's installation Gerard gave him a dinner, 
and for two hours with Mirales, the Spanish envoy, 
and several members of Congress, he smoked and 
listened to Gerard's argument that policy required 
" a permanent line of separation " between Spanish 
and American possessions, and that only by so lim- 
iting themselves could the States remove the Euro- 
pean belief that they were naturally turbulent and 
ambitious, like their English fathers. Jay diplo- 
matically suggested that France was as much inter- 
ested in this arrangement as Spain, and Gerard, 
seeing that no definite propositions were following, 
dropped the subject with the reply that that was 
all the more reason for adopting it.^ Then and at 
other times Gerard urged the danger to the colo- 
nies of too extensive boundaries, and fancied that 
Jay assented to the idea of bounding the colonies 
as they were at the beginning of the Revolution.^ 
That would exclude the Mississippi; and Gerard 
argued, according to his instructions, that a claim 
to the navigation of the Mississippi or to the west- 
ern territory beyond it was absurd, and was op- 

^ De Cireonrt, pp. 260, 261, Gerard to Vei^ennes, December 22, 
1778. 
2 De Cireonrt, p. 266, Gerard to Vergennes, January 28, 1779. 



112 JOHN JAY 

posed to the policy of France and Spain, since the 
United States could not be held to succeed to the 
claims or rights of Great Britain, which were still 
open to be conquered by Spain. For any such pur- 
pose France, he said, would certainly not continue 
the war.^ Similar opinions Gerard expressed to 
Jay often in his own rooms as the evening deep- 
ened towards midnight, and Jay has left a record 
of his views at the time which concurred closely 
with Gerard's : that we had no right to the Flor- 
idas, and that the Mississippi " we should not want 
this age." ^ Of Jay, accordingly, Gerard had the 
highest opinion : " he is a man of enlightened un- 
derstanding," he wrote to Vergennes, "free from 
prejudice, capable of broad views ; he is sincerely 
attached to the alliance and an enemy of the Eng- 
lish. He takes infinite pleasure in the idea that 
this triumvirate, as he calls it, of France, Spain, 
and America, will defy the forces of the whole 
world. He talks with frankness and good faith, 
and yields willingly to the good arguments one 
presents to him. I am much mistaken if we shall 
not have reason to regret if his presidency is as 
short as it seems likely to be." ^ Jay was at all 
times an excellent listener, and to this useful and 
amiable trait may be due not a little of Gerard's 
enthusiasm. It was, however, not a wholly one- 
sided bargain at this stage in the war to secure 

1 De Circourt, p. 264- 

2 Jay's Jay, i. 95, 100, 

8 De Circourt, p. 263, Gerard to Vergennes, December 22, 1778. 



MINISTER TO SPAIN 113 

a triple alliance between France, Spain, and the 
United States, with a recognition of independence, 
in exchange for the western wilderness and waters. 
But when Jay found that Spain had declared war 
for her own purposes without regard to America, 
the whole situation appeared changed, and thereaf- 
ter in his opinion there remained nothing worth the 
sacrifice even of part of the Mississippi. 

Gerard had long urged Congress to come to 
some imderstanding with Spain ; suggesting that 
on these lines they might obtain from that country 
an acknowledgment of their independence and a 
treaty of commerce. At length, in September, 
1779, Congress voted on the appointment of a min- 
ister to treat with Great Britain. On the first two 
ballots, six States voted for John Adams, five for 
Jay, and the vote of one State was divided. New 
England was stanch for Adams, to champion the 
claim to the fisheries, though Adams was obnox- 
ious to France ; while Jay was the candidate of 
New York. The next day the nomination for a 
minister to Spain was opened, and the friends of 
Adams, the pro-English party, so called among 
them, declared for Arthur Lee, the enemy of Deane 
and Gerard ; finally, Adams was appointed peace 
commissioner to Great Britain, and Jay minister to 
Spain. The choice of Jay, Gerard informed Ver- 
gennes, "leaves nothing to be desired. To great 
intelligence and the best intentions, he unites an 
engaging and conciliatory mind and character." ^ 
* Gerard to Vergennes, September 27, 1779, Stevens MSS. 



114 JOHN JAY 

Jay was well aware of the satisfaction of Gerard, 
and also of the Spanish envoy, Mirales. " I have 
reason to think," was his dry comment, " that both 
of them entertained higher opinions of my docility 
than were well founded." ^ 

It was not an attractive position, — that of an 
unrecognized envoy of a country little known and 
less liked, begging money at a haughty and penu- 
rious court. Franklin, who had been appointed to 
Spain January 1, 1777, had postponed his jour- 
ney, merely inclosing to Aranda the resolution of 
Congress which offered Spain help in reducing 
Pensacola, — an offer that was never properly 
acknowledged ; and Arthur Lee, who succeeded 
Franklin, had left Spain in disgust, having suc- 
ceeded in wringing from repeated promises of mil- 
lions only a meagre hundred and seventy thou- 
sand livres ; unable to negotiate a loan, much less 
a treaty .2 Nevertheless, Jay accepted at once, 
though with modest expectations. On October 16 
he received his instructions, — to induce Spain to 
form a commercial treaty similar to that with 
France, to acquire a port on the Mississippi in 
Spanish territory, and to obtain a loan of five mil- 
lions, or at least a subsidy, in exchange for the 
Floridas. The navigation of the Mississippi was 
to be preserved at all hazards. Four days later 
Jay set sail in the Confederacy, the government 
frigate that had been ordered to take Gerard back 

1 Jay's Jay, i. 100. 

2 Bolles, Financial Hist, of the U. S. p. 246 n. 



MINISTER TO SPAIN 115 

to France, on the arrival of his successor, Luzerne. 
With Jay went his wife, to the distraction of old 
Governor Livingston and his wife, who had no 
time to bid their daughter good-by ; his nephew, 
Peter Jay Munro ; his brother-in-law. Colonel Liv- 
ingston, afterwards judge of the United States 
Supreme Court, as his private secretary ; and Mr. 
Carmichael, a member of Congress, as his public 
secretary. A violent storm disabled the ship and 
forced the captain to make for Martinique, where, 
on December 18, they cast anchor in the harbor 
of St. Pierre, narrowly escaping an English fleet, 
which captured on the same day nine French 
merchantmen off Port Royal. Some indiscreet 
attempts on the part of Gerard to discover Jay's 
instructions had created a coolness between the 
two diplomats, which was increased by a differ- 
ence of opinion on the proper course to be taken 
after the storm. But Adams certainly exaggerated 
greatly when he thought this petty dissension led 
Jay to a general distrust and dislike of French- 
men. At Martinique, the officers of the Con- 
federacy naturally fraternized with French officers 
who chanced to be on shore, and Jay, finding the 
Americans distressed for lack of money, character- 
istically advanced them a hundred guineas. The 
idea of their being " obliged to sneak . . . from 
the company of French officers," he wrote, " for 
fear of running in debt with them for a bowl of 
punch, was too humiliating to be tolerable, and too 
destructive to that pride and opinion of independ- 



116 JOHN JAY 

cnt equality which I wish to see influence all our 
officers." ^ 

Ten days were lost at Martinique ; then, on a 
frigate lent by the governor, the party reembarked 
for Toulon, and January 22, 1780, disembarked 
unexpectedly at Cadiz, whither they were driven 
by English men-of-war. Jay was now, as he 
expressed it, " very disagreeably circumstanced," 
without letters of credit or recommendation to 
any one there, with no money even, except what he 
borrowed through the courtesy of a fellow-passen- 
ger.^ He at once sent Mr. Carmichael to Madrid, 
with instructions to sound the sentiments of the 
court, and discover how far their relations to the 
United States were independent of France, — a 
significant direction. Meanwhile, Mr. and Mrs. 
Jay were cordially entertained by the governor of 
Andalusia, Count O'Reilly, who gave Jay a confi- 
dential account of the politics of the court, and of 
the personal character of those who composed it, 
not excepting the king, — accounts which Jay after- 
wards found to be perfectly accurate. When the 
spring came they moved to Madrid, to be near the 
first secretary of state, Count Florida Blanca, a 
man of whom Montmorin said : "At times cold and 
phlegmatic, at times violent, he is in these opposite 
moods equally self-opinionative. . . . By the bent 
of his mind, too, he is inclined to dissimulation." ^ 

^ Jay's Jay, i. 105. 

^ Sparks, Diplomatic Corresp. o/Amer, Rev. viL 220. 

' Montmorin to Yergennes, December 7, 1778, Doniol, ill. 610 n. 



MINISTER TO SPAIN 117 

At Madrid, Jay received no official recognition ; 
that, Count Florida Blanca declared, was to de- 
pend " on a public acknowledgment and future 
treaty." Consequently he could not attend the 
court, and was neglected by the nobles and offi- 
cials. Some time was spent at first in answering 
elaborate inquiries about the social and military 
condition of the States; and then came a long 
and, as it seemed at the time, an important inter- 
view with the minister at Aranjuez : some money 
was promised, and the one obstacle to a treaty 
was said to be " the pretensions of America to the 
navigation of the Mississippi ; " but Count Florida 
Blanca hoped that " some middle way might be hit 
on." ^ Jay's sense of diplomatic honor was now 
severely tested : he had promised the French min- 
ister, Montmorin, to inform him of the course of 
the negotiations, but this conversation was confi- 
dential. " I was reduced," Jay confessed, " to the 
necessity of acting with exquisite duplicity, — a 
conduct which I detest as immoral, and disapprove 
as impolitic, — or of mentioning my difficulties to 
the coimt, and receiving his answers." He told 
the count, it need not be said, and was allowed to 
keep his promise.^ Such frankness must have 
seemed naive, perhaps amusing, to the clever 
young diplomat, who, at that very moment, held 
locked in his own breast the all-important secret 
of the treaty of Aranjuez. 

1 Sparks, Dipt, Corr. of Amer. Bev. vii. 256. 

2 Ibid. 



118 JOHN JAY 

The question of the navigation of the Missis- 
sippi was a novelty in international diplomacy. 
The United States was the first power to insist on 
the right of a people who live along a river to 
sail through the dominion of other powers to its 
mouth ; ^ they also claimed the same right imder 
the reservation to Great Britain in the treaty of 
Paris of the right of navigation. But it was the 
mediaeval policy of Spain to keep the Gulf of 
Mexico a closed sea from Florida to Yucatan. 
Florida Blanca, indeed, in September, went so far 
as to say that the exclusive navigation of the Mis- 
sissippi was the principal object of the war, and 
more important than the capture of Gibraltar.^ 
Spanish obstinacy is proverbial, and on this point 
was as invincible as Cumberland (the English 
agent sent to draw Spain into a separate peace) 
found it to be on the question of the cession of 
Gibraltar. The credit of the United States was, 
moreover, seriously hurt by Congress suddenly 
drawing bills on Jay and their other ministers 
abroad, to be met by loans to be begged from the 
various courts. Any chance of compromise was 
at once lost with the suspicious, selfish court of 
Spain. 

The first bills to appear were drawn on Laurens, 
who was supposed at home to be at The Hague, 
but who, in fact, had been caught by an English 
cruiser, and was lying in the Tower. Then bills 

^ Schuyler, American Diplomacy, pp. 265, 266. 
' Sparks, Dipl, Corr. of Amer. Rev. vii. 456. 



MINISTER TO SPAIN 119 

were presented to Jay for acceptance, drawn on 
himself ; and not until months had elapsed did the 
explanation come from the Committee for Foreign 
Affairs, that, even before news came of his arri- 
val, bills for $100,000 had been so drawn at six 
months' sight, and negotiated to raise money for 
the purchase of military stores ; and that, so soon 
as his arrival was reported, still further bills for 
$25,000 more were also drawn. " I would throw 
stones with all my heart," wrote Jay, " if I thought 
they would reach the committee without injuring 
the members of it." ^ But he tried to get this 
draft " on the bank of hope," as he called it, cashed 
by Florida Blanca, suggesting that the action of 
Congress showed their reliance on the friendship 
of Spain. All these bills, which for the next year 
and a half made Franklin and Jay sleepless and 
sick with mortification and anxiety, were accepted 
by them personally, and were paid in the end by 
France, with only trivial help from Spain. Flor- 
ida Blanca insisted on some equivalent from the 
United States ; he suggested frigates to be built 
in America, and manned to attack East Indian 
convoys ; but, as Jay said, Congress had only the 
money it got from these bills to buy the frigates 
with. He argued rather shrewdly that the colo- 
nies ought to be assisted because they were in arms 
against the enemies of Spain and France for the 
sole purpose of winning an honorable peace for all 
three nations. But money was difficult to procure, 

^ Sparks, Dtpl. Corr. of Amer. Rev. vii. 304, 305. 



120 JOHN JAY 

even in Holland, the richest country in Europe ; 
for the long wars had exhausted every treasury, 
and " if America was a beggar, England was a far 
greater."^ As Jay expressed it, "the fact is, 
there is little corn in Egypt." ^ The net result of 
his long efforts was the loan of $150,000 ; and at 
length he was forced by promises, that were not 
kept, to suffer one batch of bills, not amounting to 
over $25,000, to be protested ; but in a month they 
were redeemed, and American credit was restored 
by the successful importunity of Franklin and the 
wise generosity of France. 

When affairs were once more in good train, 
everything was ruined by the news of the loss of 
Charleston, the effect of which on the timid court 
was, in Jay's words, " as visible the next day as 
that of a bad night's frost on young leaves." So 
matters were again for months at a standstill. 
Meantime, no news had come from friends in 
America, the letters being intercepted or sup- 
pressed ; and his own dispatches Jay had to send 
down by his secretary to the seaboard to be given 
personally to the captain of any casual American 
vessel. His only child had been left in America, 
and a baby born in Spain lived scarcely a month. 
Jay had to follow the wandering court from town 
to town, to Madrid, to Aranjuez, to San Ildefonso, 
and traveling was so expensive that Mrs. Jay had 

1 Bolles, Financial Hist, of the U. S. 2d ed. pp. 256, 257. 

2 Jay to Franklin, September 8, 1780, E. E. Hale, Franklin in 
France, i. 412. 



MINISTER TO SPAIN 121 

generally to be left behind at the capital. When 
his letters do come they contain little to cheer. 
Secretary Thomson writes that by March, 1780, 
the paper dollar had fallen to a penny in value,^ 
a depreciation by which the Jay family suffered 
severely ; and his brother Frederick teUs how a 
party of " De Delancey Boys " broke into his fa- 
ther's house, stole money and plate, and slightly 
wounded Mrs. Frederick Jay with a bayonet.^ 
Though greatly straitened. Jay sent home gifts of 
the most useful things he could think of, and found 
time to discuss and provide for the old family ser- 
vants. 

In his official family also there was imhappi- 
ness : his secretary proved untrustworthy, and a 
young man in his charge, from a perverse spirit of 
malignant mischief, increased the discord. A let- 
ter from Jay to Franklin, introducing Prince Mas- 
serana, gives a glimpse of the lonely life he led at 
Madrid : " I am much indebted to the politeness 
of this nobleman, and except at his table have 
eaten no Spanish bread that I have not paid for 
since my arrival in this country." ^ As discom- 
forts multiplied, Jay became more and more proud 
and reserved. " I never find myself," he confessed 
to Franklin, " less disposed to hiunility or im- 
proper compliances than when fortune frowns." 

1 From Charles Thomson, October 12, 1780, Jay M8S. 

2 From Frederick Jay, NoTember 8, 1781, Jay MSS. 

8 To Franklin, October 25, 1780, Hale, Franklin in France, I 
416. 



122 JOHN JAY 

The Marquis d'Aranda complained of Jay, indeed, 
in a private letter that was quoted, " qu^il parait 
toujoursfort houtonne^'^ — a curious complaint to 
come from a Spanish nobleman. In fact, Jay had 
a great admiration for the man and the statesman, 
calling him the ablest Spaniard he had met : " I 
think it probable," was his characteristic acknow- 
ledgment of the marquis's criticism, " we shall be 
yet on more familiar terms, for though I will never 
court, yet I shall with pleasure cultivate his ac- 
quaintance." ^ Delay in the payment of his salary 
helped to make the unfortunate envoy's situation 
seem at times intolerable : "to be obliged to con- 
tract debts and live on credit is terrible," ^ is a 
painful cry, wrung from the heart of a man like 
Jay. Some distractions there were of course, 
though we do not know whether Jay continued his 
sight-seeing so vigorously as during the first sum- 
mer in Spain. Then, in July, he went with Brock- 
hoist Livingston to a bull-fight, when " one of the 
knights who fought on horseback was killed and 
two wounded ; " and every evening that summer 
there was a comedy,^ which they doubtless occa- 
sionally attended. 

In the spring of 1781 the French ambassador 
surprised Jay by suggesting that the negotiations 

1 To Franklin, February 21, 1781, Hale, Franklin in France, i. 
422. 

2 To Franklin, April 1, 1781, Hale, Franklin in France, i. 426. 
8 J. B. Livingston to Gov. Livingston, July 12, 1780, Mag. 

Am. Hist. iii. 512. 



MINISTER TO SPAIN 123 

failed because Florida Blanca expected further 
overtures about the Mississippi, and believed Jay's 
discretion to be greater than he admitted.^ What 
was meant did not become clear till some weeks 
later, when directions came from Congress to in- 
sist no longer on the free navigation of the Mis- 
sissippi below the thirty-first degree of latitude. A 
month more and Jay's instructions were still fur- 
ther modified, permitting him to negotiate without 
reference to the treaties with France. The South- 
em States chiefly interested in the fate of the Mis- 
sissippi, Virginia, Georgia, and South Carolina, 
had indeed changed their policy radically, — partly 
persuaded by the infinitely various arguments of 
Luzerne, partly because English successes in the 
South made them fear a permanent loss of terri- 
tory if Spain did not help them, or if a peace were 
suddenly negotiated on the basis of uti possidetis, 
before the British troops had withdrawn. Jay dis- 
approved of these new instructions, and said so. 
Spain, he argued, was now at war for her own pur- 
poses, and would be induced by no cession to be 
more liberal or to fight harder. He tried, how- 
ever, to renew negotiations. Better wait for a 
general peace, was the reply he got. Pressure of 
business was also a standing excuse. At last he 
was asked to draft propositions with a view to a 
treaty of alliance between Spain and the States, 
and he did so instantly. But the abandonment of 
the right to navigate the Mississippi he carefully 

^ Sparks, Dipl. Corr. o/Amer. Bev. vii. 456, 457. 



124 JOHN JAY 

made void if tlie alliance were postponed to a gen- 
eral peace. To these propositions no answer was 
ever given. " This court," Jay wrote to Franklin 
in November, 1781, " continues to observe the 
most profound silence. . . . Heretofore the minis- 
ter was too sick and too busy ; at present his sec- 
retary is much indisposed." ^ In the autumn of 
1781 a person was appointed to treat with Jay, 
but when applied to he never had instructions. In 
the spring of 1782 Jay proposed to demand a cate- 
gorical answer, but was dissuaded by the French 
ambassador.'^ He determined to go to the Escu- 
rial and urge his business, but again the French 
ambassador bade him " wait with patience." ^ 
Thus month after month was wasted, as Jay 
gloomily expressed it, in " expectation, suspense, 
and disappointment." Political disturbances in 
the Spanish colonies might account for some cool- 
ness towards the American envoy at the close of 
1781, but the real explanation of Jay's ill-treat- 
ment was the positive unfriendliness felt by Spain 
for the Americans, — detestation of them as repub- 
licans, and jealousy of them as territorial rivals. 
In such circumstances a treaty such as Jay was 
intrusted to make was out of the question. 

The mediation proffered about this time by the 
Empress of Russia and the Emperor of Germany 
was, in Jay's opinion, unlikely to be effectual ; in- 

1 November 21, 1781, Jay MSS. 

2 Sparks, Dipl. Con. of Amer, Rev. viii. 11. 

3 Ibid. p. 33. 



MINISTER TO SPAIN 126 

deed, he thought, as did Vergennes, that those 
powers were more friendly to England than to 
France.^ What he wished was a close defensive 
alliance between France, Spain, and America, an 
alliance that Holland might probably be induced 
to join. Then a vigorous campaign " would give 
us a peace worth our acceptance." At the mo- 
ment, he saw that Spain wanted Gibraltar and 
Jamaica, and was far from being tired of the war ; 
and he anxiously sounded Montmorin as to the 
steps France was taking to influence Spain towards 
an American alliance. On this point Montmorin, 
though "well attached to the American cause," 
showed a "mysterious reserve." Yet Jay still 
had " full confidence in the friendship of France ; " 
though he was gradually learning to take an inde- 
pendent stand. " In politics," he explained to 
Franklin, " I depend upon nothing but facts, and 
therefore never risque deceiving myself or others 
by a reliance on professions which may or may not 
be sincere." ^ In reality, France was indignant at 
the neglect of America by Spain, at her indiffer- 
ence to American credit, at her unwillingness to 
compromise. Spain ought to try more to gain the 
friendship of the Americans, said Montmorin in 
June, 1782, for fear of their considering a separate 
peace, especially if their independence is assured 
and a peace comes to be hindered only by the de- 
mands of Spain. But, he added, this court of 

1 To B. FrankHn, August 20, 1781, Jay MSS. 

2 Ibid. loc. cit. 



126 JOHN JAY 

Spain thinks of nothing but the chance of winning 
Gibraltar.! 

The hands of France, however, were tied by the 
treaty of Aranjuez. France was committed to a con- 
tinuation of the war till Spain should get Gibraltar, 
and meantime American independence became a 
subsidiary object. " Spain knew her own business 
and interest, and France had no right to press her 
on such points;" such was Vergennes's final answer 
to Jay through Montmorin. At last Jay told the 
latter openly that he thought England would be 
the first nation to acknowledge American independ- 
ence, for France did not wish " to see us treated as 
independent by other nations until after a peace, 
lest we should become less manageable in propor- 
tion as our dependence upon her shall diminish ; " 
and the count waived the subject. 

In May, 1782, Jay was invited to dinner by 
Count Florida Blanca, but the invitation was soon 
explained to have been a mistake, and when re- 
newed to Jay " as a private gentleman " was very 
properly declined. This was the last mortifica- 
tion Jay was destined to suffer from the Spanish 
court. 

Franklin and Jay had long been intimate 
friends in spite of the difference of forty years in 
their ages. In the spring of 1781, when Franklin, 
in a moment of discouragement, sent to Congress 
his resignation, he urged Jay to take his place at 
Paris, and suggested his writing to his friends 

1 Montmorin to Vergennes, June 8, 1782, De Circowt, iii. 45. 



MINISTER TO SPAIN 127 

" accordingly," ^ But Jay thought the change im- 
politic, wrote home to that effect, and Franklin's 
resignation was not accepted.^ In the following 
summer Jay, whom the influence of Luzerne had 
retained in Spain when Congress thought of recall- 
ing him, Franklin, Laurens, and Jefferson had 
been joined with Adams as commissioners for a 
general peace ; and now in April, 1782, while 
Laurens was a prisoner on parole, Adams at The 
Hague, and Jefferson still in America, Franklin 
summoned Jay to his assistance : " Here," he wrote 
in Paris, " you are greatly wanted, for messengers 
begin to come and go, and there is much talk of a 
treaty proposed ; but I can neither make nor agree 
to propositions of peace without the assistance of 
my colleagues. . . . You would be of infinite ser- 
vice." ^ Jay at once asked the advice of Mont- 
morin, who, on consulting Florida Blanca, made 
no objection ; Jay could treat with Aranda, then 
the Spanish ambassador at Paris, and, in any case, 
Mr. Carmichael might stay behind and act in 
Jay's stead. "Jay has doubtless made up his 
mind," Montmorin concluded, " to leave Spain, 
which he dislikes extremely, and which, as a matter 
of fact, must have been very disagreeable to him 
for more than two years past." * Without delay 
Jay shook from his feet the unfriendly dust of 

1 Prom B. Franklin, April 12, 1781, Jay MSS. 

2 To B. FrankUn, Augnst 20, 1781, Jay MSS. 

8 From B. Franklin, April 22, 1782, Jay's Jay, ii. 94. 

* Montmorin to Vergennes, May 5, 1782, De Circourt, ill. 343. 



128 JOHN JAY 

Madrid and started for Paris. Mrs. Jay fell sick 
on the journey with fever and ague, and as " the 
posthorses at the different stages had been engaged 
for the Comte du Nord," who had left Paris with 
a great retinue, " they did not reach their destina- 
tion tiU June 23." i 

1 Sparks Dipl. Corr. of Amer. Itev. viii. 113. 



CHAPTER Vn 

NEGOTIATOR OF PEACE: THE ATTITUDE OF 
FRAJ^CE IN 1782 

The instructions to the American commission- 
ers, appointed to treat with Great Britain, were 
based on the theory that, without the active coop- 
eration of the French court, the States would be 
at the mercy of England, that France was engaged 
to procure them the best terms obtainable, and 
that gratitude and policy alike necessitated abso- 
lute confidence in the Count de Vergennes, French 
minister for foreign affairs. For the successful 
conduct of the negotiations, it was essential for the 
commissioners to determine whether this theory of 
Congress was correct. The facts now known show 
us that it was incorrect. 

France, by her treaty with Spain, had formed 
obligations inconsistent with the interests of the 
States. By it the object of the war had been 
changed from securing independence for America 
to winning Gibraltar for Spain, from that which 
was already within the grasp of the allies to that 
which was in any case a remote contingency, and 
was, as it happened, an impossibility ; and all this 
had been brought about without the knowledge of 



130 JOHN JAY 

the country most vitally interested in the war, the 
one country whose existence as a nation was at 
stake. The treaty was very possibly unavoidable, 
as is urged by the latest, best informed, and most 
voluminous apologist of France, M. Doniol.^ But 
whether such was the case or not is immaterial 
from the American point of view ; so long as the 
facts were withheld from Congress the conduct of 
Vergennes was disingenuous, and the American 
ministers, so far as they suspected or knew the 
facts, were no longer justified in intrusting to him 
the fortunes of their country. 

It was, however, not merely regard for the pre- 
judices, or even the "gigantic pretensions," of 
Spain that made France an inefficient friend to 
America in reaping the fruits of the Revolution ; 
her attitude in 1782 was perfectly consistent with 
what had been the secret policy of her govern- 
ment since before the Declaration of Independence. 
These matters may be discussed now without the 
bitterness and partisan feeling which the discussion 
excited in 1783 and in 1798. We no longer con- 
found the morality of a people with the policy of 
its government, — even in a democracy ; and such 
confusion would be still more unjust in the case of 
a non-representative government of the eighteenth 
century, above all in the France of Louis XVI. 
Jay himself made no such error, but carefully 
discriminated between the French people and the 

^ La Participation de la France dans Vitablissement de Vinde- 
pendance des Etats-TJnis, Faxis, 1883. 



NEGOTIATOR OF PEACE 131 

French government : " It is true," he said, " that I 
returned from that country to this, with opinions 
unfavorable to their court ; but not only without a 
wish unfriendly to them, but, on the contrary, with 
sentiments of good-will and regard." ^ " It is not," 
he added, " from the characters of this or that ad- 
ministration or prevailing party in the government 
that the character of a nation is to be inferred." " 
Even though the official conduct of a nation, in 
international negotiations, is crudely selfish, and 
the language of its ministers is an effectual con- 
cealment of the truth, neither people nor ministers 
are necessarily blamable ; for the first duty of a 
nation is self-preservation, and the first duty of a 
negotiator is to his own country, as is a lawyer's to 
his client. It certainly can hardly be said that 
now, after the lapse of a hundred years, controver- 
sies between nations are ever adjusted on altruistic 
principles, from motives purely of gratitude and 
affection ; and if such is the fact, it is no longer 
possible honestly to take a sentimental view of the 
peace negotiations of 1783. 

As early as 1775 M. Malouet, the French minis- 
ter of the navy, was told that the people wished 
France to interfere in behalf of the colonies ; and 
he at once replied, in the true spirit of the old re- 
gime, that it was as illogical as it was dangerous 
for an absolute monarchy to place itseK at the 
head of a democratic revolution.^ Such, too, was 

1 To R, G. Harper, December 21, 1795, Jay's Jay, ii. 263. 

2 Jay's Jay, ii. 262. 8 Mimoires, iii. 335. 



132 JOHN JAY 

the opinion of the king, who was afraid of the ef- 
fect upon his own subjects of a bad example ; ^ 
and in his policy of neutrality he was supported 
by Maurepas and Necker. If Vergennes thought 
otherwise, it was certainly from no love of repub- 
lican institutions, of the sentiment of liberty, or of 
the Americans personally. " With respect to prin- 
ciples," wrote Tom Paine, before he became a hire- 
ling of Luzerne, " Vergennes was a despot." ^ He 
was the steady opponent of the more liberal minis- 
ters of the king, Choiseul, Turgot, and Necker ; he 
hated such revolutionary ideas as liberty of the 
press, liberty of speech, and parliamentary govern- 
ment, and accordingly he detested the Americans 
as " rebels." ^ But the deepest feeling in the min- 
ister's heart was hostility to England, and a patri- 
otic longing to wipe out the disgrace of the treaty 
of 1763. "The inveterate enmity of that power 
to us," he wrote in a memoir to the king in 1775, 
" makes it our duty to lose no opportunity for 
weakening it. The independence of the insurgent 
colonies must therefore be encouraged." " I hope 
to live long enough," he said again a little later in 
private, " to see England humiliated and American 
independence acknowledged." * The profession of 
faith he made to Montmorin was doubtless perfectly 
honest : " My country's good is dear to me. I am 

^ Soulavie, Louis XV. iii. 409. 
2 Bights of Man, 1791, i. 92. 

^ Tratchevsky, La France et VAllemagne sous Louis XVL p. 
18. 
* Moniteur Universel, 1789, i. 45 n. 



NEGOTIATOR OF PEACE 133 

no less devoted to that of Spain ; to contribute to 
the one and the other, that is all my ambition ; " 
and his regard for the interests of Spain may well 
have come from a belief in the importance of the 
closest imion between the two branches of the 
House of Bourbon, without that personal motive, 
which has been suggested, that, not being of noble 
lineage, he was ambitious to die a grandee of 
Spain. 

The policy of France was much discussed in se- 
cret memoirs and letters to the king, but always, 
very naturally, with a single eye to French inter- 
ests. Turgot, early in the Revolution, in an elab- 
orate paper, urged that the best thing for France 
would be a long English-American war ending in 
victory for England, because nothing could be 
more enfeebling to a military power than to try to 
govern by force so distant a country. The worst 
event for France would be a speedy ending of the 
war, no matter who won, for that would leave the 
troops of England free to be turned against her 
European foes. Such was the state of affairs when, 
after having received vague encouragement from 
the French emissary, Bonvouloir, the Secret Com- 
mittee for Foreign Affairs in Congress sent Deane, 
a gentleman of means and education, disguised as 
a merchant, to sound the intentions of the court, 
and to procure money and arms. Deane engaged 
the romantic imagination and ingenious pen of 
Beaumarchais, who, by a series of adroitly worded 
memoirs, and seconded by the good-will of de Ver- 



134 JOHN JAY 

gennes, persuaded the king that peace could be 
preserved only by preventing the complete triumph 
of either England or the colonies, and that, to effect 
this, sufficient aid must be given the Americans to 
" put their forces on an equality with those of Eng- 
land, but nothing beyond." ^ From that time the 
king was convinced, but against his will, or rather 
against his instincts and his conscience ; and when- 
ever documents relating to the war that followed 
were given him to sign, he is said to have com- 
plained pathetically, " Must I sign, for reasons of 
state, what I don't think right ? " ^ By secret 
grants from the treasuries of France and Spain, on 
the suggestion of de Vergennes, Beaumarchais was 
enabled, through the fictitious firm of Rodrigue, 
Hortalez et Cie., to supply the colonies with much- 
needed war material in exchange for promised car- 
goes of tobacco, which, however, never came ; and 
within a year he even succeeded in sending them 
ships of war and officers. 

After the Declaration of Independence, Deane, 
Franklin, and Arthur Lee were commissioned to 
attend to the affairs of the United States in Europe. 
In December Franklin landed at Nantes, to the 
great excitement of the populace, and his entry 
into Paris was like a royal triumph. Then he re- 
tired to Passy, and there lived a life so happy in 
winning and keeping public affection, that it was 

^ February 29, 1776. De Lom^nie, lAfe of Beaumarchais, iii. 
122. 
2 Moniteur' Universel, 1789, i. 45 n. 



NEGOTIATOR OF PEACE 135 

well described by Cabanis as " a masterpiece of 
art." 

In February, 1777, the commissioners agreed to 
separate, and Franklin remained attached to the 
court of France, whose vacillation was suddenly 
ended by the unexpected events of the war in 
America. It had been doubted whether the colo- 
nies could withstand a serious campaign. But the 
capitulation of Burgoyne was a complete answer 
to all doubters, and with the prospect of success 
France saw her chance for intervention. When it 
was known that England was proposing terms of 
reconciliation, though it was pardon only that Lord 
Howe had to offer, and not redress of grievances, 
de Vergennes could wait no longer. The terms 
proposed were, as he thought, so clearly hostile to 
France, — though it is not obvious how, — that no 
time was to be lost in preventing their acceptance. 
American independence, moreover, he was con- 
vinced, would be useful to France. For these vari- 
ous reasons, as he explained to M. Gerard,^ the 
minister opened negotiations at Paris for a treaty 
of amity and commerce, and for a treaty of even- 
tual alliance. The treaty of commerce recognized 
the United States as independent in fact, but, ex- 
cept for its friendly reciprocity, was not histori- 
cally important ; the treaty of alliance, however, 
provided for the war with England that was sure to 
be forced or precipitated by the acknowledgment 
of independence. The end of the alliance, said the 
1 Instructions to Gerard, De Circourt, iii. 255, 256. 



136 JOHN JAY 

treaty, is to maintain the independence of the 
United States. 

These treaties were for years afterwards re- 
ferred to by France as a singular instance of gen- 
erosity to the helpless, friendless colonists. And 
for years it seems to have been a general opinion 
that the treaty of alliance bound the United States 
to France by ties unusually confidential, close, and 
permanent. It did, indeed, result in America re- 
ceiving, to promote the common cause of France, 
Spain, and the colonies, active help from France 
in men and money, at a time when threatening 
bankruptcy and despair made such help priceless. 
By such timely aid France may be said to have in 
fact enabled the States to win what they did win 
at the peace ; and aU this aid, comfort, and good- 
will may well have been an expression, far truer 
than the official French chicanery during the nego- 
tiations, of the feelings, the vague sentiments and 
longings, of the French people, dumb as yet and 
not self-conscious, but who cheered when they saw 
the white head of Franklin, and in a few years' 
time made Europe ring with watchwords in part 
caught from him. The final benefit, however, 
guaranteed to the colonies by the treaty was curi- 
ously meagre : " the treaty," said de Vergennes, 
" only guarantees [the] independence [of the Amer- 
icans] and their eventual conquests ; " ^ and in re- 
turn for this the Americans promised not to make 
peace with England without securing their inde- 
1 Vergennes to Luzerne, September 25, 1779. 



NEGOTIATOR OF PEACE 137 

pendence. This was the quid pro quo; ^ and these 
were all the mutual covenants of the two nations, 
so far as they had actual reference to the making 
of a peace. Such certainly was the French inter- 
pretation of the spirit and words of the treaty. 
Independence was insisted on, because de Ver- 
gennes thought with Lord Chatham and George 
III. that its acknowledgment would be the begin- 
ning of the end of the British empire. Yet even 
independence need not be expressly acknowledged ; 
a tacit recognition of it would satisfy both the 
terms of the treaty and the interests of France.^ 

If the French government had allied itself to 
the struggling colonies from sympathy with their 
motives and pity for their wrongs, it would natu- 
rally take a friendly interest in their ambition and 
effort to establish themselves so as to secure a 
great and peaceful future. But even in the in- 
structions to Gerard, the first French minister to 
the States, de Vergennes explains and emphasizes 
the indifference, or rather the opposition, of France 
to every claim which our people really believed 
just, and which events have proved to have been 
essential to their welfare. The principle of French 
policy was that, the independence of the States 
once established, they should be so hemmed in by 
foreign powers, and so limited in size, that fear of 

^ Montmorin to Florida Blanca, October 15, 1778, Doniol, iii. 
522. 

2 Gerard to Congress, July 14, 1779, S. J. ii. 198 ; Vergennes 
to Luzerne, September 25, 1779. 



138 JOHN JAY 

English aggression would keep them permanent 
dependents on France. For this reason England 
was to retain Canada.^ The Floridas were to go 
as Spain should choose ; and as to the navigation 
of the Mississippi, if Spain should insist, the Amer- 
icans were to be discreetly prepared to give it up,^ 
and to trust to the " magnanimity " of the king of 
Spain.^ Luzerne was, indeed, directed to " encour- 
age Congress to confide in Spain," and this long 
after the treaty of Aranjuez, when de Vergennes 
knew that Spain cared for nothing in the war but 
her own selfish interests, which she regarded as 
opposed to American claims, even to American 
weKare. There was also no necessity, Gerard was 
instructed, for the Americans to reach as far north 
as the fisheries of Newfoundland. " The fishery 
along the coast," wrote de Vergennes to Luzerne, 
" belongs . . . exclusively to England, France par- 
ticipating by special treaties. The Americans have 
forfeited their share in British fisheries by de- 
claring their independence of England. . . . The 
United States should . . . not grudge France 
the slight advantage of extending her fisheries." * 
France and England, Luzerne very naturally sug- 
gested some years later, should guarantee the fish- 
ery to each other.^ The selfish motive here dis- 
closed leads one to wonder whether the readiness 

1 De Circourt, iii. 255, 310. 

2 Vergennes to Gerard, August 26, 1778, Doniol, iii. 569, 578. 
^ Vergennes to Luzerne, September 25, 1779. 

* Ibid. 

^ Luzerne to Vergennes, January 11, 1782. 



NEGOTIATOR OF PEACE 139 

with which France yielded all the western territory 
to Spain was not half justified by a secret con- 
sciousness that, if desirable, a cession of it might 
later be induced by proper pressure, as was in due 
time the cession by Spain to France of Louisiana. 
France, then, had many piirposes concerning 
America to effect at the eventual peace, — purposes 
the precise opposite of the claims dearest to the 
Americans themselves, her allies. This policy was 
tortuous and difficidt, and imposed upon France, 
so far as possible, the task of controlling the selec- 
tion of the American commissioners, and of dictat- 
ing their instructions. In a word, it was necessary 
for France to control completely the negotiations 
for peace. To this end, Gerard, Marbois, and 
Luzerne employed all the arts of the European 
diplomacy of the period, dissimulation, flattery, 
what Flassan calls the '"'"mensonge politique,^^ and 
what de Vergennes refers to as " donatifs,^^ and M. 
de Circourt as " secours temporaires en argent.''^ 
" His majesty," wrote de Vergennes to Luzerne, 
" further empowers you to continue the donations 
which M. Gerard has given or promised to various 
American authors, and of which he will surely 
have handed you a list." This list has not yet 
been disclosed, and the topic is one which even M. 
de Circourt shows a desire to avoid. " This deli- 
cate subject," he says, " has been even in my time 
the subject of criticisms and controversies into 
which we need not enter." ^ 

1 De Circourt, iii. 283. 



140 JOHN JAY 

These methods met with a success that can be 
explained only by the surprisingly facile character 
of some members of Congress, and the almost in- 
credible simple-mindedness and credulity of others. 
Congress, in those early days, as pictured in the 
private correspondence of the French agents and 
ministers, does not altogether represent that Am- 
phictyonic Council of honorable, unselfish patriots 
into which it has now become transfigured by the 
magic consecration of time. Some thirty years af- 
terwards, Gouverneur Morris was sitting over the 
polished mahogany at Bedford with John Jay, when 
he suddenly ejaculated through clouds of smoke, 

" Jay, what a set of d d scoundrels we had in 

that second Congress ! " " Yes," said Jay, " that 
we had," and he knocked the ashes from his pip? ^ 
" The tone of Congress," says Mr. C. F. Adams, 
in his review of the situation, " had gradually be- 
come lowered. The people were suffering from 
exhaustion by the war, especially in the Southern 
States." 2 

It thus became possible for the accomplished 
envoys of the French court gradually to create a 
party devoted wholly to French interests. " I can 
do what I please with them," wrote Bonvouloir of 
the members of Congress in 1775.^ Gerard, also, 
so soon as he was appointed in 1778, set himself 
to persuade the public of the disinterestedness of 
France by suggesting suitable arguments to writers 

^ Family tradition. ^ John Adams's Works, i. 341. 

8 Durand, p. 10. 



NEGOTIATOR OF PEACE 141 

for the newspapers who signed themselves often by 
such names as Gallo-Americanus and Americanus.^ 
Tom Paine was engaged for a thousand dollars a 
year to inspire " the people with sentiments favor- 
able to France and the alliance," ^ and Paine was 
then secretary to the Committee on Foreign Af- 
fairs. In no long time Luzerne was a power in 
the House. In the autumn of 1781 R. R. Living- 
ston was elected to the new secretaryship for for- 
eign affairs. " He is not ignorant," wrote Luzerne 
to de Vergennes on November 1, " of the part I 
took in his election." ^ 

Before Adams was chosen to treat for peace 
with England, his instructions were carefully 
adapted to suit the views of Luzerne. The first 
definite statement of the boundaries claimed by 
the States, as reported by a committee of Con- 
gress, February 23, 1779, was : Northerly, the an- 
cient limits of Canada to Lake Nepissing, thence 
W. to the Mississippi ; Westerly, the Mississippi. 
The boundaries specified in the ultimata adopted 
March 19 were substantially the same, that on the 
south, and for the most part that on the north, 
being identical with those actually acquired at the 
peace. The instructions to Adams, resolved upon 
August 14, 1774, were to the same effect. But 
Luzerne was alert and energetic, and did not let 

1 Gerard to Vei^ennes, April 11, September 1, 1778; May 29, 
1779, Stevens MSS. 
i Durand, p. 137. 
^ Luzerne to Vergennes, May 14, August 27, 1778, Stevens MSS. 



142 JOHN JAY 

them long remain unchanged. In January, 1780, 
he presented to Congress the views of Spain : that 
the United States should extend no farther to the 
westward than settlements were allowed by the 
proclamation of 1763 ; that they should have no 
territory on the Mississippi, and therefore no right 
to navigate it ; while even lands east of the river, 
in which settlements were prohibited, are held to 
be still British possessions. In February and 
March he urged the same and similar arguments.^ 
The chief position now pressed was the importance 
of conciliating the court of Madrid. But the 
Southern States resented extremely any sacrifice 
of their claims ; for Virginia was reaching out to- 
wards the Mississippi and the foundations of Ken- 
tucky were laying. So between these two fires 
Congress long delayed precise instructions. June 
6 and 7, 1781, there was a long debate on the 
boundaries. So many were in favor of taking the 
Ohio for a boundary, wrote Luzerne to de Ver- 
gennes, that it would only have depended on him 
to get such a motion passed, but " it seemed to me 
that circumstances might arise in which it would 
be necessary to withdraw the boundaries still far- 
ther." 2 The matter of boundaries is dependent 
on the events of the war, was de Vergennes's com- 
ment, and Congress is wise in not defining them.^ 
The final instructions to the commissioners referred 

^ Lnzeme to Vergennes, February 11, March 13. 

2 Luzerne to Vergennes, June 13, 1781. 

3 Vergennes to Luzerne, September 7, 1781. 



NEGOTIATOR OF PEACE 143 

them to these former instructions, but omitted to 
tie them by absolute directions. By a secret arti- 
cle, however, they were ordered to try to get the 
boundaries as stated. It is not surprising, per- 
haps, that on November 23 Luzerne communicated 
to Congress the satisfaction felt by France with 
the discretion left to the ministers. 

Luzerne was equally successful in the matter of 
the fisheries ; after long debates, and in spite of 
the ceaseless efforts of Elbridge Gerry and the 
delegates from Massachusetts, — at times the New 
England party succeeding, at times the French, — 
a share in the fisheries, so far from being an ulti- 
matum, appeared in the final instructions only as 
a condition precedent to a treaty of commerce with 
Great Britain in case any such should be negoti- 
ated. The wishes of Congress are subordinated to 
French convenience, was Luzerne's cry of delight 
to de Vergennes.^ It is true that Marbois assured 
Congress that in regard to the fisheries the king 
would do his best to procure every advantage for 
the United States.^ But M. Marbois was in this 
matter, to say the least, curiously misinformed. 
The question is simply this, said Luzerne, discuss- 
ing the fisheries with Mr. Thompson, a member 
of Congress : Has Congress a right to insist on 
France procuring for them this advantage ? One 
has only to read the treaty to see that France is 
only bound to secure independence for America.^ 

1 June 3, 1780. ^ Marbois to Vergennes, July 11, 1781. 

^ Luzerne to Vergennes, January 5, 1782. 



144 JOHN JAY 

The subject may be closed with this curt remark 
of de Vergennes : " The Americans doubtless do 
not flatter themselves that in the last analysis we 
will let the peace depend on the greater or less 
extension that may be granted to them as to the 
fisheries." ^ 

When in the autumn of 1779 the election came 
on of a minister to negotiate for peace, the New 
England party chanced to be strong enough at the 
moment to elect the champion of the American 
fishermen, John Adams. Already suspected and 
disliked by France, Adams soon made her detest 
him by his independent manners; and Franklin 
conveyed to Congress the disapprobation felt for 
his fellow countryman by de Vergennes, an act, 
perhaps, hardly justified by diplomatic propriety. 
In the spring of 1781 de Vergennes urged on Lu- 
zerne the policy of having Adams instructed to 
take no step without the king's consent, — as the 
next best thing to having him removed for good.^ 
Luzerne, accordingly, spoke confidentially to the 
president and various members of Congress about 
the danger of Adams losing for America an oppor- 
tunity of making peace on reasonable terms. As 
a result, he hoped two associates would be sent 
him, or directions to govern himself by de Ver- 
gennes's advice.^ He labored earnestly with the 
committee on instructions as to the folly of leaving 

^ Vergennes to Luzerne, March 23, 1872. 

2 Vergennes to Luzeme, March 9, 1781, April 19, 1781. 

5 Luzeme to Vergennes, June 1, 1781. 



NEGOTIATOR OF PEACE 145 

the negotiation to Adams's sole discretion. It 
was, he said, the affection of France for the United 
States that made her so anxious in the matter.^ 
Now the committee was charged to draw up a reso- 
lution, of which article 4 provided that the Amer- 
ican minister should be guided by the advice of 
France. The article, as drafted, required the 
utmost confidence in the French ministers, and for- 
bade concluding peace without consulting them. 
That was not enough, exclaimed Luzerne to the 
chairman; it was necessary that Adams should 
have to follow the advice of France, if she thought 
it essential.^ Accordingly, June 8, the instructions 
were amended so as to read : " You are to make 
the most candid and confidential communications 
upon all subjects to the ministers of our generous 
ally, the King of France; to undertake nothing 
in the negotiations for peace or truce without their 
knowledge or concurrence ; and ultimately to gov- 
ern yourself by their advice and opinion." At 
last Luzerne was satisfied. " I regard in effect," 
he said, " the negotiation as being actually in the 
hands of the king, with the exception of the ques- 
tion of independence and the treaties." ^ The 
resolution had passed with but three States against 
it, a happy result which he attributed chiefly to 
the absence of Samuel Adams, and to the rupture 
of the New England League for which he was in- 
debted to his old pensionary, General Sullivan. 

^ Luzerne to Vergennes, June 8, 1781. Cf. S. J. ii. 438. 
^ Luzerne to Vergennes, June 11, 1781. ^ Ibid. 



146 JOHN JAY 

The success of his schemes almost turned Lu- 
zerne's head with joy, for elsewhere he speaks of 
the "unlimited confidence" placed in France.^ 
Yet it is to be noticed that these most unwise 
instructions were passed, not for the benefit of 
France, but purely for the sake of America, be- 
cause it was believed that in such way the best 
terms could be procured at the peace. Luzerne 
had previously disclaimed that France had any 
selfish object in the matter ; now, when complaints 
arose, Luzerne urged Congress to reconsider their 
decision, and hinted that " France would be glad 
to be relieved of the responsibility if she consulted 
her own interest." ^ 

When doubts of the honesty of France were ex- 
pressed, Luzerne was directed to discredit them by 
assurances that were but repetitions of these earlier 
statements, which must have had no small share in 
effecting the purposes of France. You may assure 
them, said de Vergennes, that, "far from wishing 
to abuse the influence he might have on the negoti- 
ations of the American ministers, the king will em- 
ploy it only for the best advantage of the United 
States; and that, if he does not succeed in pro- 
curing them all the terms that each of them indi- 
vidually might wish, the fault will certainly not be 
his, but due to circumstances."^ A more definite 

^ Luzerne to Vergennes, June 13, 1781. 
2 Luzerne to Vergennes, June 23, .1781. 

8 Vergennes to Luzerne, Septenaber 7, 1781 ; November 23, 
1781, S. J. iii. 83. 



NEGOTIATOR OF PEACE 147 

pledge of faith it would be hard to draft, — and 
yet Rayneval seems to have forgotten it when he 
discussed the American claims with Shelburne in 
London. 

These instructions — of which there was so 
much unnecessary talk when the preliminary arti- 
cles of peace reached America, and which assume 
such sanctity even in the imagination of M. Doniol 
— were not founded on any treaty obligation, but 
were enacted under a mistake of fact for the pur- 
pose of gaining from England, by the good offices 
of France, terms which, as appears by the official 
correspondence of de Vergennes and his diplo- 
matic agents, France had secretly determined to 
oppose. The attitude of France in 1782, as 
sketched in that correspondence, was not that pre- 
sented by Luzerne and credited by Congress ; and 
no treaty satisfactory to the United States could 
possibly have been negotiated except by one who 
saw the facts as they were, and was bold enough to 
act accordingly. Adams may have been such a man, 
but his temperament was that of a fighter rather 
than of a diplomatist, and, suspected as he was by 
France of unfriendly prejudice from the begin- 
ning, he could have had but slight opportunity of 
success. Now to tie his hands still more, follow- 
ing up Luzerne's suggestion to give Adams " two 
adjoints," Jay,^ Franklin, Jefferson, and Laurens 
were added to the commission. As for the peace 
negotiations, wrote Luzerne, they will depend 

^ Jay being named first. 



148 JOHN JAY 

henceforth on his colleagues as much as on him. 
" Mr. Jay is the one whose reports in the course 
of the negotiation will make most impression on 
Congress, because he passes as being the least 
violent either for or against us, and I am very 
sure that his accounts will have much influence on 
the opinion Congress will form of our conduct at 
the peace." ^ 

1 Luzerne to Vergennes, September 25, 1781. 



CHAPTER Vin 

THE NEGOTIATIONS 

1782-1783 

When Jay reached Paris on June 23, 1782, the 
negotiations, strictly speaking, had not yet begun. 
All the belligerent powers, except Spain, were 
eager for peace ; the ministry of Lord North had 
been driven from power in March by a series of 
votes of " want of confidence," and the Rockingham 
ministry had taken office only on condition that the 
king would not veto the concession of independ- 
ence to America ; while France was convinced of 
the necessity of entering into direct negotiations 
at Paris in order to forestall the intervention of 
the imperial courts of Austria and Russia, whose 
offers of mediation were half accepted by England, 
in whose favor they seemed unfairly prejudiced.^ 
Franklin had opened unofficial intercourse with the 
ministry, through Oswald, " a pacifical man," ^ and 
Grenville, " a sensible, judicious, intelligent, good- 

^ " Observations relative to Pacification (French), June 20, 
1782," Stevens MSS.; Vergennes to Montmorin, June 22, 1782, 
Stevens MSS. ; Montmorin to Vergennes, August 22, 1782, Stevens 
MSS. 

2 Franklin's Works, ix. 267. 



150 JOHN JAY 

tempered, and well-instructed young man,"i the 
former being the personal envoy of Shelburne, sec- 
retary of state for home and the colonies, and the 
latter the personal envoy of Fox, secretary of state 
for foreign affairs. Each of these ministers was 
endeavoring to secure the American negotiations 
for his own department. Grenville had received 
successively several commissions, but only to treat 
with France and not technically including Amer- 
ica ; while as yet Oswald had no commission at all. 
In these preliminary overtures, however, some sug- 
gestions had been made by Franklin which proved 
useful : that the only engagements America had 
with France were comprised in the treaty of com- 
merce and the treaty of alliance, and that so soon 
as England conceded the independence of America, 
"the treaty she had made with France for gaining 
it ended." ^ De Vergennes had proposed that the 
negotiations of France and America should be sep- 
arate, though they were to move pari passu and 
the two treaties were to be signed simultaneously ; ^ 
and this idea Franklin communicated to Grenville, 
who acceded to it gladly.* The proposition that 
France should accept the grant of independence as 
her full compensation de Vergennes rather scorn- 
fully rejected.^ For, " even admitting America to 
be the sole object of France in the war, there still 

^ Franklin's W<yrks, viii. 35. 

2 Grenville to Fox, May 14, 1782, Stevens MSS. 

3 Bancroft, x. 540 ; Franklin's Works, ix. 299. 

* Grenville to Fox, May 30, 1782, Stevens MSS. 
6 Grenville to Fox, May 10, 1782, Stevens MSS. 



THE NEGOTIATIONS 151 

remained Spain to satisfy, and that power had 
never had anything in common with America, whose 
independence she had not yet recognized ; " ^ a 
frank admission that France might prolong the war 
for objects in which, in the words of Fox, " it is 
not even pretended that America has any interest 
either near or remote." ^ It seems then to have 
been agreed that America should negotiate with 
England directly, not through de Vergennes or the 
mediating courts, and separately by herself, with- 
out further communication with France than was 
required by comity, " bienseance," to use Frank- 
lin's term, and by the interpretation the American 
ministers should, in their discretion, put upon their 
instructions. These instructions, so far as they im- 
posed confidence in France, were not at that time 
construed by Franklin literally, for he did not com- 
municate to de Vergennes the one important sug- 
gestion which he made with regard to the terms of 
peace ; namely, the cession of Canada, a suggestion 
that he would hardly have included even in his 
informal " notes for conversation " had he been 
aware that it was opposed equally by England, 
France, and his own government. So early as 1778 
it was the settled design of France and Spain " to 
keep the English in the possession of Nova Scotia 
and of Canada," ^ and Gerard was instructed to 
dissuade Congress from their plan of conquering 

1 Grenville to Fox, May 30, 1782, Stevens MSS. 

2 Fox to GrenviUe, May 26, 1782, Stevens MSS. 

8 Vergennes to Gerard, December, 1778, De Circourt, iii. 264. 



152 JOHN JAY 

Canada, as the king thought the possession of it 
by England would be a useful means of keeping 
America dependent upon France.^ The English 
ministry declared the cession of Canada to be " out 
of the question," ^ and Washington considered its 
possession to be undesirable. Such was the state 
of affairs when Jay arrived on the scene. 

The first letter he wrote to America testified to 
his regard for Franklin : " I have endeavored to 
get lodgings as near to Dr. Franklin as I can. He 
is in perfect good health, and his mind appears 
more vigorous than that of any man of his age I 
have known. He certainly is a valuable minister 
and an agreeable companion." ^ The next day, 
writing to Montmorin, he showed how far he was 
from any prejudice against the French : " What I 
have seen of France pleases me exceedingly. Doc- 
tor Franklin has received some late noble proofs 
of the king's liberality in the liquidation of his 
accounts, and the terms and manner of paying the 
balance due on them. No people understand doing 
civil things so well as the French. The aids they 
have afforded us received additional value from the 
generous and gracious manner in which they were 
supplied, and that circumstance will have a propor- 
tionable degree of influence in cementing the con- 
nection formed between the two countries." * 

1 Vergennes to Gerard, December, 1778, De Circourt, iii. 255. 
^ Fitzmatirice, Life of Shelburne, iii. 183-186. 
8 Jay to Livingston, June 25, 1782, Dipt. Corr. viii. 114, 115. 
4 Jay to Montmorin, June 26, 1782, Jay's Jay, ii. 100. 



THE NEGOTIATIONS 153 

Jay lost not a moment before setting about the 
business of his mission. The entries in his diary 
run : " 1782, 23d June. Arrived in Paris about 
noon. Spent the afternoon at Passy with Dr. 
Franklin. He informed me of the state of the 
negotiation, and that he kept an exact journal of 
it. 24th. Waited upon M. Vergennes with the 
Dr.i The count read us his answer to the British 
minister. 25th. Wrote to Count Aranda. Wrote 
to the secretary for foreign affairs. 26th. After 
breakfast with the Dr. met with Mr. Grenville." ^ 
The paper that de Vergennes read to Jay and 
Franklin was presumably a copy of the verbal an- 
swer he had made to Grenville on the 21st, which, 
to quote his own words to Montmorin, " was drawn 
up solely with the view of prolonging the negotia- 
tion to gratify our desires and the convenience 
of our allies. In fact the four points on which I 
ask for arrangements would take up quite six 
months." ^ June 29 Jay and Franklin called upon 
Aranda, the Spanish ambassador, who had been 
authorized to continue the negotiations attempted 
at Madrid. A suggestion of the necessity of mu- 
tual concessions was made by the ambassador, but 
nothing of importance was transacted immediately, 
as the next day Jay fell ill, and was unable to take 
any part in affairs for several weeks. 

During Jay's illness another change of ministers 

^ Dr. Franklin. 

2 Jay's Jay, i. 136. 

8 Vergennes to Montmorin, July 20, Stevens MS8. 



154 JOHN JAY 

occurred in England. Rockingham died on July 
1, and the next day the king offered the vacant 
office to Shelburne " with the fullest political confi- 
dence." The Whig party at once objected to what 
was unquestionably a constitutional exercise of the 
prerogative, and Shelburne's acceptance was fol- 
lowed by the resignation of Fox, Burke, Sheridan, 
and others of Fox's intimate friends. Pitt became 
chancellor of the exchequer, Townshend home and 
colonial secretary, and Lord Grantham secretary 
for foreign affairs. This was, indeed, a ministry, 
to use the king's phrase, " on a broad bottom," but 
decidedly liberal. In the House of Lords Shel- 
burne stated that his views on the subject of 
American independence were still the same as 
heretofore, that it would be a fatal misfortune to 
England, but that now he was obliged to yield to 
necessity. He would, however, make every exer- 
tion to prevent the court of France from dictating 
the terms of peace ; the sun of England would set 
with the loss of America, but he was resolved to 
improve the twilight and prepare for the rising 
of that luminary again.^ On the 11th Parliament 
rose, and Shelburne was prepared to give his whole 
attention to concluding the negotiations before it 
should reassemble in November. He at once sent 
Benjamin Vaughan, the political economist, to 
Paris to assure Franklin, who was an intimate 
friend, that there was to be no change of policy ; 
and to Oswald he wrote : " I beg him to believe 

^ Fitzmaurice, liife of Shelburne, iii. 239, 241. 



THE NEGOTIATIONS 155 

that I can have no idea or design in acting towards 
him and his associates but in the most liberal and 
honorable manner." ^ 

On July 9, in an interview with Oswald, Frank- 
lin drew up a series of articles to be communi- 
cated to Shelburne, as a basis for negotiation. 
The articles marked necessary were : (1) Inde- 
pendence, full and complete, in every sense, and 
the withdrawal of all troops ; (2) A settlement of 
boundaries ; (3) A confinement of the boimdaries 
of Canada to at least what they were before the 
Quebec Act ; (4) A freedom of fishing on the 
Banks of Newfoundland and elsewhere for fish 
and whales. The articles marked advisable were : 
(1) An indemnity to many people who had been 
ruined by the destruction of towns ; such an in- 
demnity, Franklin said, " might not exceed five or 
six thousand pounds ; " (2) Some acknowledgment 
of the error of England in distressing the country ; 
(3) American ships and trade to have the same 
privileges in the United Kingdom as British ships 
and trade ; (4) The cession of Canada and Nova 
Scotia.^ At the close of this interview Franklin 
withdrew his suggestion, made in his "notes for 
conversation " in April, that the royalists might be 
compensated by the sale of waste lands in Canada ; 
and declared that, owing to the inability of Con- 
gress to control the particular States, the claims of 

1 Shelburne to Oswald, June 30, Fitzmaurice, Life of Shelburne, 
iii. 243. 

2 Fitzmaurice, Life of Shelburne, iii. 243, 244. 



156 JOHN JAY 

the royalists could not be considered. Oswald con- 
cluded his report with the remark, "I could not 
perceive that he meant that the progress and con- 
clusion of their treaty was to have any connection 
or would be influenced by what was doing in the 
treaties with other powers." ^ 

When Fox resigned, Grenville thought fit to 
resign also, and was succeeded by Fitzherbert, the 
English minister at Brussels. But before leaving 
Paris, Fitzherbert alarmed Franklin by spreading a 
report that Shelburne had no intention of granting 
independence. The report was instantly denied by 
Shelburne : " There never have been two opinions," 
he assured Oswald, " since you were sent to Paris, 
upon the most unequivocal acknowledgment of 
American independency ; " and he promised him a 
commission, with instructions from Townshend " to 
make the independency of the colonies the basis 
and preliminary of the treaty." ^ This language 
seems at first sight unequivocal ; but it has misled 
some historians into supposing that what was in- 
tended was an acknowledgment of independence, 
without reference to a treaty, — an acknowledg- 
ment as absolute as was subsequently extorted by 
Jay through the representations of Vaughan. The 
language of Shelburne, however, on this occasion 
differs little from the vote of the cabinet. May 23, 
on the motion of Fox, " to propose the independ- 

^ Oswald to Shelburne, July 11. 

2 Shelburne to Oswald, July 27, 1782, Hale, Franklin in France, 
u. 90. 



THE NEGOTIATIONS 157 

ency of America in the first instance, instead of 
making it a condition of a general treaty ; " ^ a 
motion which Shelburne and a majority of the cab- 
inet construed to mean that independence was pro- 
posed merely as " the price of peace," as a basis to 
treat upon.^ As to the articles drawn up by Frank- 
lin, Shelburne hoped that those " called advisable 
will be dropped, and those called necessary alone 
retained as the ground of discussion." ^ 

On August 6 a copy of the promised commission 
arrived, empowering Oswald to treat and conclude 
with the commissioners of "the said colonies or 
plantations," etc. The next day Oswald called 
upon Franklin at Passy, who read the commission 
and said " he was glad it was come," and " that he 
hoped we shou'd do well enough and not be long 
about it." Thus Oswald remarks in his journal, 
having in mind Franklin's earlier suggestion that 
on the granting of independence the treaty with 
France came to an end. " That could not but be 
very agreeable to me," he continued, "if my ex- 
pectations had not been so soon after dampt by the 
. . . unpleasant reception from Mr. Jay." This 
conversation with Jay, which occurred the follow- 
ing day, is perhaps of sufficient interest to justify 
free quotation from Oswald's journal. Jay, he 
wrote, " is a man of good sense, of frank, easy, and 

^ Jnne 30. Hale, Franklin in France, ii. 61 n. 
2 Fitzmaurlce, Life of Shelburne, iii. 219. 

' Shelburne to Oswald, Jane 27, 1782, Hale, Franklin in France, 
ii.90. 



158 JOHN JAY 

polite manners. He read over the copy of the 
commission . . . and then said : By the quotation 
from the Act of Parliament in the commission he 
supposed it was meant that Independence was to 
be treated upon, and was to be granted, perhaps, 
as the price of peace ; that it ought to be no part of 
a treaty ; it ought to have been expressly granted 
by Act of Parliament, and an order for all troops 
to be withdrawn, previous to any proposal for 
treaty; as that was not done, the king, he said, 
ought to do it by Proclamation, and order all gar- 
risons to be evacuated, and then close the Amer- 
ican war by a treaty." Then, after mentioning 
" many things of a retrospective kind," Jay added 
that " the great point was to make such a peace as 
should be lasting." Oswald noticed the expression 
which he had often heard from de Vergennes and 
Franklin, and was curious to know what meaning 
Jay attached to the words. " What security," he 
asked, " could be given for a continuance of peace, 
save a treaty, which, like the Treaty of Paris, was 
apt to prove very inadequate security ? " Jay re- 
plied, " He would not give a farthing for any parch- 
ment security whatever. They had never signified 
anything since the world began, when any prince 
or state, of either side, found it convenient to break 
through them. But the peace he meant was such, 
or so to be settled, that it should not be the inter- 
est of either party to violate it." As to France, 
he said that by their treaty the Americans could 
not make peace but in concurrence with the Eng- 



THE NEGOTIATIONS 159 

lisli settlement with France ; that the independ- 
ence of America was not a sufficient indemnity to 
France, and, if granted as such, would put them 
under a greater obligation to France than they 
inclined to, as if to her alone they were indebted 
for their independence. The treaty of alliance 
with France must be fulfilled ; for " they were a 
young republic just come into the world, and if 
they were to forfeit their character at the first out- 
set, they would never be trusted again, and should 
become a proverb among mankind." Jay spoke 
" with such a freedom of expression and disappro- 
bation of our conduct at home and abroad respect- 
ing America," concluded Oswald, " as shews we 
have little to expect from him in the way of indul- 
gence. And I may venture to say that, although 
he has lived till now as an English subject, though 
he never has been in England, he may be supposed 
(by anything I cou'd perceive) as much alienated 
from any particular regard for England as if he 
had never heard of it in his life. ... I sincerely 
wish I may be mistaken, but think it proper to re- 
mark, as Mr. Jay is Dr. Franklin's only colleague, 
and being a much younger man and bred to the 
law, will of course have a great share of the busi- 
ness assigned to his care." 

On the 10th Jay and Franklin consulted, by 
appointment, with de Vergennes, to whom Frank- 
lin had sent a copy of the commission. De Ver- 
gennes advised them to proceed imder it, as soon as 
the original should arrive. Jay observed that " it 



160 JOHN JAY 

would be descending from the ground of independ- 
ence to treat under the description of colonies," 
— by which phrase the States were described in 
the commission. De Vergennes replied that an 
acknowledgment of independence, instead of pre- 
ceding, must in the natural course of things be the 
effect of the treaty, and that it would not be rea- 
sonable to expect the effect before the cause. On 
the whole, the French court considered that the 
American ministers should accept the commission 
on condition that England would accept their own 
commissions as made out by Congress.^ To Mont- 
morin and Luzerne, de Vergennes subsequently 
expressed similar opinions.^ Jay's theory of de 
Vergennes's motives he explained fully to Frank- 
lin : He thought that the French minister wished 
to postpone the acknowledgment until the objects 
of Spain had been secured, " because, if we once 
found ourselves standing on our own legs, our in- 
dependence acknowledged, and all our other terms 
ready to be granted, we might not think it our 
duty to continue in the war for the attainment of 
Spanish objects. I could not otherwise account 
for the minister's advising us to act in a manner 
inconsistent with our dignity, and for reasons 
which he himseK had too much understanding not 
to see the fallacy of. The Doctor imputed this 

1 " Reflections (French) on the bill of July 25, 1782," Stevens 
MSS. 

2 To Montmorin, August 22 ; to Luzerne, September 27, Stevens 

MSS. 



THE NEGOTIATIONS 161 

conduct to the moderation of the minister, and to 
his desire of removing every obstacle to speedy 
negotiations for peace. He observed that this 
court had hitherto treated us very fairly, and that 
suspicions to their disadvantage should not be 
readily entertained. He also mentioned our in- 
structions as further reasons for our acquiescence 
in the advice and opinions of the minister." ^ Jay, 
indeed, had divined, with an accuracy hard to sur- 
pass, the fears of the court of Spain, which by the 
treaty of Aranjuez Vergennes was compelled to 
regard. " When once independence has been defi- 
nitely offered to the United States," Montmorin 
wrote from Madrid, August 12, expressing his own 
opinion and that of Florida Blanca, " if it is not fol- 
lowed immediately by peace it will not be difficult 
to persuade them that the continuation of the war 
has an entirely different object from their inter- 
ests." ^ That de Vergennes had an ulterior motive 
was, indeed, obvious enough, from the inconsist- 
ency of his present argument that independence 
should be the effect of the treaty, with his previ- 
ous assertion to Grenville, in Franklin's presence, 
that it was no favor to France, since independ- 
ence existed in fact before France interfered, and 
with his still earlier refusal, inspired possibly by 
Adams, to accede to the Russo-Austrian plan of 
mediation, because it contemplated an English 

1 To R. R. Livingston, September 18, 1782, Dipl. Corr. viii. 
135. 

2 Montmorin to Vergennes, August 12, 1782, Stevens MSS. 



162 JOHN JAY 

negotiation with the States as colonies, and not as 
an independent power of equal rank with the others. 
Franklin, however, was unconvinced by Jay's rea- 
soning ; for on the morning of August 11, Sunday, 
he told Oswald that " Mr. Jay was a lawyer, and 
might possibly think of things that did not occur 
to those who were not lawyers. And he at last 
spoke as though he did not see much difference ; 
but still used such a mode of expression" that 
Oswald could not positively say that he would not 
insist " on Mr. Jay's proposition, or some previous 
or separate acknowledgment." ^ 

There was, however, no room to mistake Jay's 
meaning. " I urged upon Oswald," he wrote, " in 
the strongest terms the great impropriety, and con- 
sequently the utter impossibility, of our ever treat- 
ing with Great Britain on any other than an equal 
footing, and told him plainly that I would have no 
concern in any negotiation in which we were not 
considered as an independent people ; " and with 
Oswald's approval he drew up a declaration, recog- 
nizing the colonies as independent States, which, 
after being submitted to Franklin, was delivered 
to Oswald on the 15th. They consented, however, 
to waive the declaration, when the Englishman 
showed that he was instructed to grant independ- 
ence if the commissioners refused to treat other- 
wise, and they agreed to accept a stipulation of in- 
dependence in a separate preliminary article. On 
August 17 Oswald communicated these demands 

1 Hale, Franklin in France, ii. 112, 



THE NEGOTIATIONS 163 

to the ministry, though his commission under the 
great seal had arrived the day before, and Frank- 
lin and Jay were discussing it with de Vergennes, 
who repeated his previous arguments. " Upon the 
whole," wrote Oswald, " they would not treat at all 
until their independence was so acknowledged as 
that they should have an equal footing with us and 
might take rank as parties to an agreement."^ 
"The American commissioners," he wrote again, 
" will not move a step until independence is ac- 
knowledged ; until the Americans are contented, 
Mr. Fitzherbert cannot proceed." ^ 

Jay also prepared a letter explaining the atti- 
tude of the commissioners. " If Parliament meant 
to enable the king to conclude a peace with us on 
terms of independence, they necessarily meant to 
enable him to do it in a manner compatible with 
his dignity, and consequently that he should previ- 
ously regard us in a point of view that would ren- 
der it proper for him to negotiate with us. As to 
referring an acknowledgment of our independence 
to the first article of a treaty, permit us to remark 
that this implies that we are not to be considered 
in that light until after the conclusion of the 
treaty, and our acquiescing would be to admit the 
propriety of our being considered in another light 
during that interval. It is to be wished that his 
majesty will not permit an obstacle so very un- 

1 To Shelbnrne, August 17, 1782, Stevens MSS. 

2 To Shelburne, August 18, 1782 ; Oswald to Townshend, Au- 
gust 18, Stevens MSS. 



164 JOHN JAY 

important to Great Britain, but so essential and 
indispensable with respect to us, to delay the re- 
establishment of peace." This letter was consid- 
ered too positive by Franklin, who, moreover, as 
Jay wrote to Livingston, " seemed to be much 
perplexed and fettered by our instructions to be 
guided by the advice of this court. Neither of 
these considerations had weight with me ; for as to 
the first, I could not conceive of any event which 
would render it proper, and therefore possible, for 
America to treat in any other character than as an 
independent nation ; and as to the second, I could 
not believe that Congress intended we should fol- 
low any advice which might be repugnant to their 
dignity and interest." Fitzherbert, writing on 
August 17, informed Grantham of de Vergennes's 
attempt to excite new jealousies and misunder- 
standings between England and America, which 
convinced him that the grant of American inde- 
pendence at the moment would not be agreeable to 
France, " as the band between them would thereby 
be loosened before the conclusion of a peace." But 
so averse was the ministry to acceding to the terms 
of Jay, that they offered to waive the claims of 
British creditors for debts prior to 1775, and of 
the refugees for compensation, " for the salutary 
purposes of precluding all further delay," as Town- 
shend expressed it. 

At last, however, Oswald was instructed, that, 
if this concession would not suffice, " in the very 
last resort" he might inform the commissioners 



THE NEGOTIATIONS 165 

that the king would recommend Parliament to en- 
able him to acknowledge independence " absolutely 
and irrevocably, and not depending upon the event 
of any other part of a treaty. But upon the whole, 
it is his majesty's express command that you 
do exert your greatest address to the purpose of 
prevailing upon the American commissioners to 
proceed in the treaty, and to admit the article of 
independence as a part, or as one only of the 
other articles." ^ In other words, the cabinet had 
determined to reject Oswald's proposal.^ On Sep- 
tember 5 Oswald sent Franklin an extract from 
this letter of Grantham's, and a day or two later 
made another vain attempt to persuade Jay to rest 
satisfied with his commission in its present form. 
On the 8th Franklin fell ill with a serious attack 
of the gout.^ 

In the mean while important events had occurred 
which convinced Jay that the French court was 
opposed to American claims in other matters than 
that of independence. When, in July, Jay re- 
newed his negotiations with Aranda, the latter 
stated the Spanish claims with great definiteness, 
and subsequently sent him a map of the bounda- 
ries proposed.* Aranda argued that the western 
territory, so far as it was not still in the possession 
of the Indians, belonged to Spain by virtue of her 

1 Townshend to Oswald, September 1, 1782, Fitzmaurice, Life 
of Shelburne, iii. 255, 256. 

2 Fitzjnaurice, Life of Shelburne, iii. p. 254. 
8 Franklin's Works, vs.. 403-405. 

* Bipl Corr. viii. 150. 



166 JOHN JAY 

conquest of West Florida and her posts on the 
Mississippi and the Illinois. Jay proposed for 
discussion a boundary east of the Mississippi, run- 
ning from a lake near the confines of Georgia to 
the confluence of the Kanawha with the Ohio and 
thence to Lake Erie ; and on August 10 he left 
with de Vergennes a map marked according to 
these views. De Vergennes withheld his opinion, 
but Rayneval, the minister's confidential secretary, 
said that he thought the Americans claimed too 
much, and Franklin seemed to agree with Rayne- 
val.^ On August 26 Jay and Aranda held another 
conference on the boundaries, and Aranda asked 
Jay to state his views in writing.^ On September 
5, upon an invitation from Rayneval, Jay talked 
over the matter with him at Versailles ; and on the 
6th Rayneval sent Jay a paper stating his per- 
sonal ideas.^ 

The argument of Rayneval was simple in its 
logic but startling in its conclusions. America's 
only claim to the western territory was under the 
rights of Great Britain, but in 1775 England had 
admitted that Ohio belonged to France, and in 
1761, 1763, and 1775 that the lands west of the 
Alleghanies were Indian territory. He therefore 
proposed that lands to the north of the Ohio should 
belong to England, lands to the south of latitude 
31° north to Spain ; also that a line should be 
drawn along the Cherokee and the Cumberland to 

1 Dipl. Corr. viii. 152. « Ibid. \m. 154. 

3 Ibid. viii. 155. 



THE NEGOTIATIONS 167 

the Ohio, and that the Indians to the west of this 
line should be under the protection of Spain, and 
those to the east under the protection of the United 
States.^ " It was not to be believed," Jay wrote, 
" that the first and confidential secretary of the 
Count de Vergennes would, without his knowledge 
and consent, declare such sentiments and offer 
such propositions, and that, too, in writing ; " and 
John Adams,^ and, in a similar case, Fitzherbert, 
reached the same conclusion.^ De Vergennes dis- 
owned all responsibility for the paper in 1783 : * 
" it might be considered as non-existent in relation 
to the king's ministers." But a year earlier, when 
the matter was still fresh, his tone to Luzerne was 
different : " A confidential note has been sent to 
Mr. Jay, in which it is almost proved that the 
boundaries of the United States south of the Ohio 
are confined to the mountains, following the water- 
shed." ^ Jay could not have forgotten that argu- 
ments similar to Rayneval's had been made to him 
repeatedly in the summer and autumn of 1779 by 
Luzerne. Then sacrifices were to be made to Spain 
to induce her to join in the war ; now similar sacri- 
fices were proposed to induce her to end it. " The 
policy of Spain at this moment amounts to this," 
wrote Montmorin on July 8, " to negotiate, if it is 
absolutely impossible to avoid it, . . . but to delay 

1 Dipl. Corr. viii. 154, 156. 

2 Ibid. vii. 68. 

8 To Grantham, August 29, 1782, Stevens MSS. 

* To Luzerne, July 21, 1783, Stevens MSS. 

6 To Luzerne, October 14, 1782, De Circourt, iii. 290. 



168 JOHN JAY 

as long as possible the moment for explaining her- 
self, in the hope that the siege of Gibraltar will be 
favorable. . . . One cannot disguise from one's 
self the fact that, in view of this state of things, it 
is almost wholly for Spain that we continue the 
war. I hope that this truth may not be too obvious 
to the Americans, who have no reason to be inter- 
ested in satisfying that power, and who would soon 
be wearied of the war if it had only this object." ^ 

That summer in the month of June two papers 
were prepared in the French department for for- 
eign affairs.2 The first of these urged the impor- 
tance of limiting the United States, so as to re- 
strain them so long as possible from ambitious 
projects ; England must renounce Georgia, and 
Florida must be ceded to Spain. " We regard it 
as necessary for the solidity of the future peace," is 
the conclusion, " to separate the English absolutely 
from this part of the continent. The ambitious 
views they have shown in wishing to have the Mis- 
sissippi for a boundary, the extension they have 
hastened to give to their commerce in this part of 
the world, the conununications that they have es- 
tablished with New Mexico, are sources of discord 
that must be eliminated." ' 

On September 10 an intercepted letter to de 
Vergennes from Marbois, Luzerne's secretary at 

1 Stevens MSS. 

2 So stated by Mr. Bancroft, who selected these papers for pub- 
lication. To Hon. John Jay, December 11, 1882. 

^ De Circourt, iii. 33. 



THE NEGOTIATIONS 169 

Philadelphia, was transmitted to Jay through Eng- 
lish hands. He speaks of the opposition which 
Samuel Adams is raising in Massachusetts to any 
terms of peace that do not preserve American rights 
to the fisheries ; and Marbois suggests that the 
king should intimate to Congress or the ministers 
" his surprise that the Newfoundland fisheries have 
been included in the additional instructions ; that 
the United States set forth therein pretensions 
without paying regard to the king's rights," etc. 
" It is remarked by some," the letter concludes, 
" that as England has other fisheries besides New- 
foundland, she may perhaps endeavor that the 
Americans should partake in that of the Great 
Bank, in order to conciliate their affection, or pro- 
cure them some compensation, or create a subject 
of jealousy between them and us ; but it does not 
seem likely that she will act so contrary to her 
true interest ; and were she to do so, it will be 
better to have declared at an early period to the 
Americans, that their pretension is not well 
founded, and that his majesty does not mean to 
support it." 1 Franklin doubted whether this let- 
ter reflected the opinions of the French ministry .^ 
" The channel ought to be suspected," he wrote to 
Livingston. " It may have received additions and 
alterations ; but supposing it all genuine, the for- 
ward, mistaken zeal of a secretary of legation 
should not be imputed to the king." De Ver- 
gennes vindicated himself in similar terms : " The 

1 Jay's Jay, i. 490, 491, 494. 2 Franklin's Works, ix. 463. 



170 JOHN JAY 

letter, by a forced interpretation, was designed to 
render us suspected in regard to the fisheries. In 
the first place, the opinion of M. de Marbois is not 
necessarily that of the king ; and in the next place, 
the views indicated in that dispatch have not been 
followed." ^ As a matter of fact this opinion of 
M. de Marbois was identical with that of the king, 
and it was not followed because circumstances 
made it impracticable. The authenticity of the 
letter was confessed by Marbois himself to Edward 
Bancroft, when they were returning on the same 
ship together after the peace,^ and subsequently to 
Mr. W. B. Lawrence. 

That America had no right to the fisheries after 
becoming independent of the crown of Great Brit- 
ain had been the familiar theme of Gerard and 
Luzerne, and was stated and restated with almost 
wearisome iteration in their correspondence. Lu- 
zerne's understanding about the matter is shown 
by a letter of August 15 to de Vergennes. He 
reports that returning prisoners bring news that 
England fears that the ambition of France and 
Spain may put a stop to the negotiation, and is 
prepared to offer America independence on condi- 
tion that she remains neutral during the rest of 
the war ; that several members of Congress as- 
sured him that, though " Spain and Holland might 
have special interests to discuss, it was not for 
the Americans to examine their nature and basis, 

^ Vergennes to Luzerne, September 7, 1783. 
2 John Adams's Works, i. App. p. 674, 



THE NEGOTIATIONS 171 

but . . . though the pretensions of the belligerent 
powers should be as exorbitant as England as- 
serted, that the United States ought not to lay 
down their arms till we had procured to all our 
allies the satisfaction they might wish." " I took 
this," continued the discreet Luzerne, " as being 
meant to show that Holland and Spain were 
bound in their turn to continue the war to pro- 
cure the fisheries for America. I replied that they 
could reckon on the moderation of the powers at 
war with England." ^ The opinions of Rayneval 
certainly coincided singularly with those of Mar- 
bois. Fitzherbert, about this time, just before 
Marbois's letter reached Jay, happened to " drop 
something "to M. de Rayneval about the Ameri- 
can claim to the fisheries. " He [Rayneval] sig- 
nified to me," Fitzherbert wrote to Grantham, " in 
pretty plain terms that nothing could be further 
from the wishes of this court than that the said 
claim should be admitted, and moreover that we, 
on our part, were not only bound in interest to 
reject it, but that we might do so consistently with 
the strictest principles of justice." ^ 

On September 9 Jay heard that Rayneval had 
left Versailles for England, traveling under an as- 
sumed name. Only a few days before Rayneval 
had explained to Jay his intended absence by say- 
ing that he was going into the country for a few 
days. Knowing the confidence de Vergennes had 

1 Luzerne to Vergennes, August 15, 1782, Stevens MSS. 

2 Fitzherbert to Graatham, August 29, 1782, Stevens MSS. 



172 JOHN JAY 

in his secretary, and having conclusive reasons 
now for distrusting the policy of France, Jay 
assumed that the object of Rayneval's mission was 
to suggest such a division of the western terri- 
tories as would be satisfactory to Spain, and a par- 
tition of the fisheries between France and Eng- 
land. The next day Jay decided to urge Vaughan 
to go to England to express the American view to 
Shelburne in opposition to Rayneval ; for Vaughan 
was still in Paris as Shelburne's unofficial personal 
agent, and had full knowledge of all that had been 
passing. Vaughan at once consented, and wrote 
to Shelburne asking him to conclude nothing with 
Rayneval till his own message had been heard, 
and on the 11th he too left Paris. "It woidd 
have relieved me," Jay wrote to Livingston, " from 
much anxiety and uneasiness to have concerted all 
these steps with Dr. Franklin ; but on conversing 
with him about M. Rayneval's journey, he did not 
concur with me in sentiment respecting the object 
of it, but appeared to me to have great confidence 
in the count [Vergennes], and to be much em- 
barrassed and constrained by our instructions." 

The mission of Rayneval was primarily sug- 
gested by certain informal proposals which Ad- 
miral de Grasse, then a prisoner on parole, had 
communicated to de Vergennes as from Lord Shel- 
burne. Montmorin, to whom de Vergennes had 
inclosed them with remarks indicating some doubts 
of their authenticity, wrote that he and Florida 
Blanca were astounded at the English propositions, 



THE NEGOTIATIONS 173 

and that the king and ministry " approve of your 
determination, and think it suitable that some one 
should be sent to England to assure himself of the 
intentions of Lord Shelburne and his colleagues." ^ 
" My instructions were as simple as they were 
laconic," wrote Rayneval many years afterwards. 
" They asked that I should demand the admission 
or disavowal of the note communicated to M. de 
Grasse. The first article of the note concerned 
the indej)endence of America. . . . Nothing was 
prescribed in relation to the other conditions to be 
made with the American commissioners." ^ And 
he further said that when the English minister in- 
troduced other American questions, he referred to 
his ignorance and lack of instructions, and in what 
he did say strengthened rather than weakened the 
demands of the Americans. One conference, with 
the arguments he used, Rayneval describes in the 
notes of his mission : " At last came the turn of 
America. My Lord Shelburne had warned me 
that they would have much difficulty with America 
about the boundaries as well as about the fishery 
of Newfoundland; but he hoped the king would 
not support them in their demands. I answered 
that I had no doubt of the eagerness of the king 
to do what depended on him to restrain the Amer- 
icans within the limits of justice and reason. And 
my lord wishing to know what I thought of their 

1 Montmorin to Vergennes, August 25, Stevens MSS. 
^ Rayneval to Monroe, November 14, 1795, Rives, Madison, i. 
655, App. O. 



174 JOHN JAY 

pretensions, I answered that I was ignorant of 
those concerning the fishery, but that, whatever 
they might be, it seemed to me that there was a 
safe principle to follow in this matter, namely : 
that the fishery in the high sea is res nullius, and 
that the fishery along shore belongs of right to the 
owners of the shores, so far, at least, as there are 
no limitations by treaty. As to the extent of the 
boundaries, I supposed the Americans would take 
that in their charters, that is to say, they would 
wish to reach from the Ocean to the Pacific. My 
Lord Shelburne treated the charters as absurd, 
and the discussion did not last longer because I 
did not wish either to sustain or deny the Amer- 
ican pretension ; I only said that the English 
minister would find in the negotiations of 1754, 
relating to the Ohio, the boundaries that England, 
then the sovereign of the United States, thought 
right to assign them." ^ This, perhaps, was the 
conversation mentioned briefly but significantly by 
Lord Edmond Fitzmaurice in his " Life of Shel- 
burne." "They then proceeded to speak about 
America. Here Rayneval played into the hands 
of the English ministers by expressing a strong 
opinion against the American claims to the New- 
foundland fishery, and to the valley of the Missis- 
sippi and the Ohio. These opinions were carefully 
noted by Shelburne and Grantham." ^ 

Almost simultaneously with Rayneval, Vaughan 
arrived in London, instructed by Jay to impress 
1 De Circourt, iii. 46. 2 md, iij. 263. 



THE NEGOTIATIONS 175 

upon the ministry that, as every idea of conquest 
had become absurd, nothing remained for England 
but to make friends with those whom she could not 
subdue ; and that the way to do this was by liber- 
ally yielding every point in the negotiation essen- 
tial to the interest and happiness of America ; of 
which the first was that of treating on an equal 
footing. With independence granted, too, America 
would be at liberty to conclude peace so soon as 
France was satisfied, without regard to Spain. As 
to the terms of peace, admission to the fisheries 
was essential ; the charters proved the right of the 
Americans to extend to the Mississippi ; and the 
peace should be so free from seeds of distrust or 
jealousy that America would find no need to form 
alliances with other nations. Finally it was neces- 
sary for ministers to take a decided and manly part.^ 
So effective was this reasoning, that the real 
meaning of the situation was perceived at once. 
Yaughan, as he said nearly fifty years afterwards, 
was asked but a single question : " L. [Lansdowne, 
for such at that time was Lord Shelburne's title] 
only asked me, ' Is the new commission necessary ? ' 
and when I answered Yes, it was instantly ordered, 
and I was desired to go back with it, which I did, 
carrying the messenger who had charge of it in my 
chaise. The grant of the commission showed how 
things stood, and I departed joyfully." ^ The feel- 

^ Jay to Liyingston, Dtpl. Corr. viii. 165. 

2 Benjamin Vaughan to Peter A. Jay, January 14, 1830, Jay, 
Address before N. Y. Hist. Soc. p. 50. 



176 JOHN JAY 

ings of the ministers are explained by Fitzmaurice, 
in the " Life of Shelburne." " It became clear to 
the cabinet," he says, " that a profound feud had 
sprung up between the Americans and their Euro- 
pean allies, and that all they had to do was to avail 
themselves of it. They at once decided to accept 
the American proposition as to the terms of the 
commission to Oswald. Lord Ashburton gave it 
as his opinion that it came within the terms of 
the Enabling Act. The new commission was then 
made out at once and dispatched to Paris by 
Vaughan." ^ That Vaughan's mission had effected 
a complete change of policy, that the signing the 
new commission was part of the new plan, not a 
continuation of the old, as is supposed by some 
writers, are facts shown conclusively by Shelburne's 
letter to Oswald announcing it : " Having said and 
done everything which has been desired, there is 
nothing for me to trouble you with except to add 
that we have put the greatest confidence, I believe, 
ever placed in man, in the American commission- 
ers. It is now to be seen how far they or America 
are to be depended upon. I will not detain you 
by enumerating the difficulties which have oc- 
curred. There never was a greater risk known ; I 
hope the public will be the gainer by it, else our 
heads must answer for it, and deservedly." ^ 

To persons not versed in public affairs the 

1 Fitzmaurice, Life of Shelburne, iii. 267. 

^ Shelburne to Oswald, September 23, 1782, Fitzmaurice, Life 
of Shelburne, iii. 267, 268. 



THE NEGOTIATIONS 177 

wording of a commission may seem a matter of 
minor importance. What difference could it make 
whether Oswald was empowered to treat with the 
colonies as such, or with the United States, so long 
as independence was to be granted absolutely by 
the first clause of the treaty ? The difference was, 
that in the first case independence still remained 
something to be bargained for ; also, most impor- 
tant of all, that the States were technically colonies 
of Great Britain till the treaty was signed, and 
could claim the fisheries, or the western territory 
as such, only by virtue of their charters, or by 
established custom. But, as de Vergennes repeat- 
edly stated, these claims could not be logically sus- 
tained by the colonies as against England, since 
their rights were derived through their connection 
with the crown. The " United States," however, 
treating for peace with Great Britain, were in an 
entirely different position. The two powers were 
on an equal footing; the only question was how 
to make a permanent peace between them. The 
colonial claims, well founded or not, became unim- 
portant ; instead of a treaty of more or less grudg- 
ing concession from a superior power to its revolted 
colonies, the treaty became one of territorial par- 
tition between equals seeking a permanent basis 
of conciliation. Indeed, the preliminary grant of 
independence may be said to have carried with it 
a grant of the western territory. 

The mission of Vaughan marked also a com- 
plete change of policy on the part of the Amer- 



178 JOHN JAY 

icans. Heretofore their attitude was that of sus- 
picion towards England and reliance on France ; 
now mutual confidence was established between 
the English ministry and the American commis- 
sioners, and both parties were anxious to arrange 
satisfactory terms of peace as speedily as possible, 
without further reference to France or her ally, 
Spain. The bold, prompt decision of Jay, reached 
without consulting even his single colleague in 
Paris, growing out of his clear perception of the 
facts as they really were, by his rejecting all com- 
promises, though thereby the negotiations with 
France and Spain should be brought to a stop, had 
at last resulted in placing the American negoti- 
ations in a condition in which a satisfactory con- 
clusion on all points was now little more than a 
matter of detail to be settled by a few frank con- 
versations. 

" On the 27th of September," wrote Jay to 
Livingston, "Mr. Vaughan returned here from 
England with the courier that brought Mr. Os- 
wald's new commission, and very happy were we 
to see it. . . . Mr. Vaughan greatly merits our 
acknowledgments." ^ The day before, in the ante- 
room of de Vergennes at Versailles, Aranda had 
made a final attempt to induce Jay to discuss a 
treaty with Spain without a communication of his 
powers, as Spain had not acknowledged the inde- 
pendence of the United States ; and Jay had de- 
clared that both the terms of his commission and 
1 Dipt. Corr. viii. 201. 



THE NEGOTIATIONS 179 

the dignity of America forbade his treating on 
any other than an equal footing.^ De Vergennes, 
happening to interrupt them, again opposed Jay's 
argument, but to no purpose. On the same day 
Jay met Rayneval, who spoke in favor of his con- 
ciliatory line, and by his conversation gave rise to 
the suspicion that Spain had been recently con- 
firmed in her claims by French advice.^ This was 
the last attempt at negotiation with Spain in 
Europe. From first to last she had refused to ac- 
knowledge the independence of the United States, 
and had pursued a policy which, even in the eyes of 
de Vergennes, was ungenerous and unwisely selfish. 
Under the new commission progress was rapid, 
though some delay was caused by the illness of 
Franklin. " Upon my saying," wrote Oswald on 
October 2, " how hard it was that France should 
pretend to saddle us with all their private engage- 
ments with Spain, he [Jay] replied : ' We will 
allow no such thing. For we shall say to France : 
The agreement we made with you we shall faith- 
fully perform ; but if you have entered into any 
separate measures with other people not included 
in that agreement, and will load the negotiation 
with their demands, we shall give ourselves no con- 
cern about them.' " ^ Accordingly on October 5, 
without consulting de Vergennes, Jay handed to 
Oswald a plan of a treaty, to the terms of which 

1 Dipl. Corr. viii. 202. 

* Jay, The Peace Negotiations, p. 127 n, 2. 

* Oswald to Townshend, October 2, Stevens MSS. 



180 JOHN JAY 

three days later Oswald assented, and wliict he 
transmitted at once to England. This plan pro- 
posed for the northeastern boundary the rivers St. 
John and the Madawaska ; the " northwest angle " 
of Nova Scotia, so called, to be determined, and 
the line drawn thence according to the treaty of 
1763. This and the other boundaries were settled 
in the first article, Oswald not " asserting the 
claims of the English crown over the ungranted 
domains, deeming that no real distinction would 
be drawn between them and the other sovereign 
rights, which were necessarily to be ceded." ^ 
These other articles provided for a perpetual peace, 
secured the right to the fisheries, including a lib- 
erty to dry fish on the shores of Newfoundland, 
and established the navigation of the Mississippi, 
to which Jay added a clause for reciprocal free- 
dom of commerce.^ No provision was made for 
debts contracted prior to 1775, nor for compensa- 
tion to the royalists, both Franklin and Jay re- 
fusing to yield in either respect, while Oswald was 
authorized not to insist on them.^ " Mr. Jay said 
to me last night," wrote Oswald on the 8th, " once 
we have signed this treaty we shall have no more 
to do but to look on and see what people are about 
here. They wiU not like to find we are so far ad- 
vanced." * And to a desire to keep the negotia- 

1 Fitzmaurice, Life of Shelburne, iii. 269. 

2 Ibid. ; Bipl. Corn. x. 88, 92. 

^ Fitzmaurice, Life of Shelburne, iii. 269, 281. 

* Oswald to Shelburne, October 8. 1782, Stevens MSS. 



THE NEGOTIATIONS 181 

tion separate, and conclude it before France was 
ready, Oswald attributed his own seeming haste 
in agreeing to Jay's terms. " I knew," he wrote 
in explanation, " it hath always been the wish of 
the ministry of this court that the Americans 
should go no faster in their treaty than they do 
themselves, and, indeed, that the main question 
regarding America should not be too quickly de- 
termined. On this account I thought it best to 
assent to the propositions as offered, in this general 
way." 1 "I look upon the treaty," he said, " as 
now closed." 

But meantime news was received in England of 
the great victory at Gibraltar, when Lord Howe 
succeeded in relieving the fortress in spite of the 
combined fleets of France and Spain, after a siege 
of three years. The ministry at once determined 
to resist the demands which de Vergennes had for- 
mulated on October 6, and to try to modify the 
American demands as well, considering that the 
feud between the allies was already established, and 
that in no case would the Americans continue the 
war for purely Spanish purposes. To strengthen 
Oswald and relieve him of the responsibility of 
making new demands, Henry Strachey, at one time 
secretary to Clive and to Lord Howe's commis- 
sion, and now under-secretary for foreign affairs, 
was sent to his assistance. He was instructed to 
urge the French boundary of Canada, and the 
claims of England to the lands between the Missis- 
1 Oswald to Townshend, October 11, 1782, Stevens MSS. 



182 JOHN JAY 

sippi and the western boundaries of the States, 
with a view to securing compensation for the refu- 
gees ; ^ to confine the Americans to a drift fishery, 
without the right of drying fish, and to omit the 
clause respecting freedom of commerce. Above 
all, the claims of the refugees were to be secured, 
and the payment of the debts prior to 1775; 
" honest debts must be honestly paid and in honest 
money." 

While Strachey was on his way, armed with 
books and papers relating to the northern bound- 
aries, Jay met Rayneval at dinner at Dr. Frank- 
lin's, and the secretary again contested the Amer- 
ican claims to the backlands and to the fisheries. 
But fortunately the man who had the most accurate 
knowledge of the fishery claims and of the bound- 
ary of Massachusetts, John Adams, was also hurry- 
ing to Paris at Jay's summons, and arrived there 
on October 26. 

Adams at once called on an old friend and coun- 
tryman, Ridley, who, as Adams noted in his diary, 
was " full of Jay's firmness and independence ; 
Jay has taken upon himself to act without asking 
advice, or even communicating with the Count 
de Vergennes, and this even in opposition to an 
instruction," which, interjected Adams, " has never 
yet been communicated to me. . . . Jay declares 
roundly, that he will never set his hand to a bad 
peace. Congress may appoint another, but he will 

1 Fitzmaurice, Life of Shelburne, iii. 280, 281, 282 ; Shelbume 
to Oswald, October 21, 1782. 



THE NEGOTIATIONS 183 

make a good peace or none."^ Adams expected 
to call on Franklin on Sunday, but heard that he 
had " broke up the practice of inviting everybody 
to dine with him " that day " at Passy ; that he is 
getting better ; the gout left him weak ; but he 
begins to sit at table." ^ On Monday, October 28, 
Jay wrote : " Mr. Adams was with me three hours 
this morning. I mentioned to him the progress 
and present state of our negotiation with Britain, 
my conjectures of the views of France and Spain, 
and the part which it appeared to me advisable for 
us to act. He concurred with me in sentiment on 
all these points." ^ But Jay does not mention here 
or elsewhere the discomfort and distress which did 
not escape the keen eyes of his kind-hearted visitor. 
"I found Jay," Adams wrote, "in very delicate 
health, in the midst of great affairs, and without a 
clerk. He told me he had scarcely strength to draw 
up a statement of the negotiation hitherto, but that 
he must do it for Congress. I offered him the 
assistance that Mr. Thaxter could afford him in 
copying, which he accepted." * In their opinions 
on the state of European affairs at the moment, 
they were in perfect harmony : " Nothing that has 
happened since the beginning of the controversy 
in 1761," were Adams's strong words, " has ever 
struck me more forcibly or affected me more in- 

1 John Adams's Works, iii. 299, 300. 

2 Ibid. 299. 

^ Jay's Jat/, i. 152. 

^ Adams to Jonathan Jackson, November 17, 1782, John Ad- 
ams's Works, ix. 514. 



184 JOHN JAY 

timately than that entire coincidence of principle 
and opinion between him and me." 

Franklin's private views were still widely diver- 
gent from those of his colleagues. In July of the 
following year he made the definite statement to 
Livingston : " With respect to myself, neither the 
letter from M. Marbois, handed in through the 
British negotiators (a suspicious channel), nor the 
conversation concerning the fishery, the boundaries, 
the royalists, etc., recommending moderation in our 
demands, are of weight sufficient in my mind to 
fix an opinion that this court wished to restrain 
us in obtaining any degree of advantage we could 
fairly prevail on our enemies to accord ; " ^ and long 
after the preliminary articles were signed, he was 
fond of saying that M. de Vergennes had never 
deceived him. Yet he apparently did not resent 
Jay's independent action in sending Vaughan to 
Shelburne, though he was now a man of seventy-six, 
while Jay was only thirty-seven years of age. The 
friendship between the two was never strained, far 
less broken ; throughout the following spring and 
summer they lived together at Passy in the most 
affectionate intimacy, and within a year Franklin 
appointed Jay one of his executors.^ Never a word 
was said by either reflecting on the character or 
the wisdom of the other. It is, then, strange that 
the biographers and admirers of Franklin should 
have thought fit, without regard to facts, to dispar- 

1 July 23, 1783, Bipl Corr. iv. 138, 139. 

2 September 11, 1783. 



THE NEGOTIATIONS 185 

age the services of the man whom Franklin himself 
ever loved and esteemed. Mr. Sparks took this 
tone, remarking : " In vain did Dr. Franklin essay 
to remove these groundless impressions from the 
mind of Mr. Jay ; " ^ the groundless impressions 
being that France and Spain were opposed to the 
American claims. Elsewhere referring to Jay's 
refusal to accept de Vergennes's advice to treat un- 
der the designation of " colonies," the same writer 
speaks of Franklin groaning " during the month 
wasted upon this nonsense.''^ More recently Mr. 
Henry Cabot Lodge has asserted that " the negoti- 
ations seemed almost concluded, when Jay appeared 
on the scene at Paris." ^ While Jay, " disliking 
and mistrusting Spain, and believing Franklin too 
ready to yield to France, checked the negotiation, 
which was prospering so well with Shelburne." ^ 
And finally one of the last of Franklin's biogra- 
phers, the Rev. Edward E. Hale, refers to the word- 
ing of Oswald's commission as " a point which he 
[Franklin] rightly thought of minor importance," 
and then, speaking of Vaughan's mission, says : " It 
seems also impossible to decide just what credit 
should be assigned to Mr. Jay. It must be acknow- 
ledged that he acted in a manner contrary to his 
instructions. It must also be acknowledged that 
matters turned out very much according to his 
mind. But that settles nothing. The question 

1 Sparks, Franklin, p. 482. 

"^ Lodge, Hist, of the English Colonies in America, 518. 

8 Ibid. 



186 JOHN JAY 

must be, ' Did Vaughan's mission decide Shelburne 
to accede to the desires of America ? ' And this 
can never he certainly known." ^ 

The conduct of Franklin during the negotiations 
can surely he explained without any disparagement 
of his colleagues. The Adams family, in three suc- 
cessive generations, have offered three such expla- 
nations, each of them adequate. If that of John 
Adams is rejected, as the perhaps hasty and exag- 
gerated expression of that blunt, eccentric man, 
and that of John Quincy Adams as also colored 
possibly by unconscious prejudice though stated 
with classic elegance, one may accept without 
offense the explanation so fairly offered by Charles 
Francis Adams : that Franklin was, in the first 
place, minister to the court of France, and that he 
was only subsequently and secondarily a negotiator 
of the peace, and that in his primary capacity, 
with the grave responsibilities it imposed, he could 
neither with propriety, nor with advantage to this 
country, exhibit the boldness of Jay, who acted 
simply as a negotiator with England unhampered 
by the obligation to the court of France, which 
affected Franklin. 

But whatever his private opinions may have 
been, they were not allowed by Franklin to influ- 
ence his public conduct, and from this time to the 
conclusion of the treaty he acted in perfect har- 
mony with his colleagues. On the 29th Oswald 
introduced Strachey, who had arrived the day 
^ Hale, Franklin in France, ii. 146. 



THE NEGOTIATIONS 187 

before, to Jay, and then, after being joined by 
Adams, all went out to Dr. Franklin's, at Passy, 
and at both these places Adams made his memo- 
rable suggestion that the questions of payment of 
the debts and of compensating the Tories were 
distinct. That evening, apparently, Adams spent 
with Franklin. " I told him, without reserve," 
wrote Adams, " my opinion of the policy of this 
court, and of the principle, wisdom, and firmness 
with which Mr. Jay had conducted the negotiation 
in his sickness and my absence, and that I was 
determined to support Mr. Jay to the utmost of 
my power in the pursuit of the same system. The 
Doctor heard me patiently, but said nothing. At 
the first conference we had afterwards with Mr. 
Oswald, in considering one point and another, 
Dr. Franklin turned to Mr. Jay and said, ' I am of 
your opinion, and will go on with these gentlemen 
in the business without consulting this court.' " ^ 
This may have been at the first regular meeting 
of the commissioners, on October 30, to exam- 
ine books and papers. It was doubtless on some 
earlier and more private occasion that the charac- 
teristic incident occurred, related by Trescott,^ and 
quoted by Parton : ^ " ' Would you break your in- 
structions ? ' Franklin asked him one day. ' Yes,' 
replied Jay, taking his pipe from his mouth, ' as 
I break this pipe ; ' and so saying Jay threw the 

1 John Adams's Works, iii. 336. 

2 Diplomacy of the XJ. S. i. 121. 

^ Parton, Life of Franklin, ii. 488. 



188 JOHN JAY 

fragments into the fire." The significance of this 
public acknowledgment by Franklin must not be 
overlooked, for thereby he became fully entitled to 
the credit, or discredit, of breaking the instruction 
to act constantly by the advice of France, which 
credit, or discredit, is usually reserved only for Jay 
and Adams. 

Adams's happy suggestion to separate the claims 
of the Tories from those of the British creditors 
struck "Mr. Strachey with peculiar pleasure. I 
saw it instantly smiling in every line of his 
face," wrote Adams in his diary. Franklin and 
Jay agreed to the payment of all just debts ; and 
Strachey at once wrote home that he thought some- 
thing might be gained.^ On the 30th and 31st the 
northeastern boundary was discussed. The Eng- 
lish at first wanted the whole of Maine, or at least 
the Penobscot and Kennebec, but Adams convinced 
even that " most eager, earnest, pointed spirit," as 
he called Strachey, by exhibiting official documents 
of former royal governors of Massachusetts. The 
boundary of Maine was by a compromise settled at 
the St. Croix, by which, as was afterward decided 
by the commissioners appointed under Jay's treaty 
of 1794, was meant the Schoodic ; and thence a 
choice was given for the northern boundary of the 
States between two lines, one along the forty-fifth 
parallel, the other through the centre of the lakes 
to the source of the Mississippi. The next day, 
November 2, the fisheries were discussed, and the 
1 October 29, 1782. 



THE NEGOTIATIONS 189 

Americans surrendered the right of drying fish, on 
condition that Nova Scotia should be substituted 
for Newfoundland ; but Jay and Adams both ob- 
jected strongly to the English notion of separating 
the English and American fisheries. On Novem- 
ber 3 compensation to the royalists was urged by 
Strachey, but to no purpose. The greater part of 
November 4 was spent by Adams and Jay at 
Oswald's with Strachey ; " from 11 to 3, in draw- 
ing up the articles respecting debts, and Tories, 
and fishery ; " the last article Adams drafted him- 
self ; and a suggestion was accepted by Oswald 
that the claims of the royalists should be recom- 
mended by Congress to the States.^ In the even- 
ing, till near eleven o'clock, Jay and Adams were 
at Oswald's again with Strachey, " as artful and 
insinuating a man as they could send," said 
Adams ; ^ and they agreed to clauses concerning 
the debts and the confiscation of lands belonging 
to Tories. The same day Strachey made a final 
appeal by letter for " stipulations for the restitu- 
tion, compensation, and amnesty," to which the 
commissioners replied : " We should be sorry if 
the absolute impossibility of our complying further 
with your proposition should induce Great Britain 
to continue the war for the sake of those who 
caused and prolonged it." On November 5 Stra- 
chey returned to England, taking with him a copy 
of the articles with a marked map ; a copy which 
Jay compared scrupulously with the original draft, 
1 John Adams's Works, iii. 302. 2 jjjV?. iii. 303. 



190 JOHN JAY 

allowing no alteration. " I did not expect to find 
him so uncommonly stiff about the matter," ^ com- 
plained Oswald ; while Strachey wrote : " You will 
see by the treaty all that could be obtained." Jay 
was particularly anxious that this treaty should be 
accepted. " He hoped," wrote Oswald to Town- 
shend, on November 6, " we would not let this 
opportunity slip, but resolve speedily to wind up 
the long dispute, so that we might become again as 
one people ; " and he suggested that the American 
negotiators were now in a better situation than 
when their instructions were given, and that if the 
business were reopened they might claim compen- 
sation for British depredations. 

During Strachey's absence the commissioners re- 
ceived further light on the policy of de Vergennes, 
when Adams visited him for the first time on the 
10th, and informed him that they and the English 
differed on two points, the Tories, and the Penob- 
scot. De Vergennes and Rayneval both advocated 
the cause of the Tories, with the object, as Adams 
suggested to Oswald's secretary, Whitefoord, of 
keeping up in America "a French party and an 
English party." ^ On the 15th he discussed the 
question of the Tories again with Oswald, with the 
result that the next day Oswald urged through 
Vaughan that Jay should go to England, as he 
thought Jay could convince the ministry. But 
Jay replied that if he should go it must be either 

1 Os-wald to Strachey, November 8, 1782. 

2 John Adams's Works, iii. 307. 



THE NEGOTIATIONS 191 

" with or without the knowledge and advice of 
this court, and, in either case, it would give rise to 
jealousies : he woiild not go." ^ Adams, however, 
felt confident, " because," as he wrote to Living- 
ston, " I find Mr. Jay precisely in the same senti- 
ments, after all the observations and reflections he 
has made in Europe, and Dr. Franklin, at last, at 
least appears to coincide with us. We are all 
three perfectly united in the affair of the Tories 
and of Sagadahoc, the only points in which the 
British minister pretends to differ from us." ^ A 
few days later he discussed with Franklin the 
French policy of trying to deprive the United 
States of the fisheries and the Mississippi, and 
Franklin agreed that the French were blind to 
their true interests. " We must be firm and 
steady and should do very well," said Adams : and 
Franklin replied, he " believed we should do very 
well and carry the points." ^ The day before, de 
Vergennes had made another argument in behalf 
of the Tories, and three days later Lafayette gave 
Jay a message from Aranda that, " as the lands 
upon the Mississippi were not yet determined 
whether they were to belong to England or Spain, 
he could not yet settle that matter." * 

In the mean time Vaughan had followed Stra- 
chey and Rayneval to England, to explain the 

1 John Adams's Works, iii. 312. 

2 November 11, Ibid. viii. 9. 
8 Ibid. iii. 321. 

* November 23, Ibid. iii. 327. 



192 JOHN JAY 

American position, and Oswald had written to 
Townshend reporting a conversation with Jay and 
Adams in which they said " that if peace with 
Great Britain was not to be had on any other 
terms than their agreeing to these provisions," 
relating to the Tories, " the war must go on, 
although it should be for seven years to come, and 
that neither they nor the Congress had any power 
in the matter." ^ But Shelburne was determined 
to make a final attempt to save the royalists, and 
drew up fresh instructions securing them indem- 
nity ; he also sought payment of debts accrued 
subsequently to 1775, and limitation of the right 
of fishing to a farther distance from shore.^ To 
coerce the commissioners he suggested that their 
cause would not gain by being deferred till Parlia- 
ment should meet, on December 5, the date to 
which the prorogation had been extended. Fitz- 
herbert also, who was added to the commission, 
was directed " to avail himself of France so far 
as he may judge it prudent from circumstances." 
But the instructions really meant much less than 
they seemed to ; Shelburne could not hope to re- 
main in power if the negotiation failed. " It is 
our determination," he had written to Fitzherbert 
in October, " that it shall be either war or peace 
before we meet the Parliament ; " ^ and accordingly 
Oswald was authorized to sign whenever Fitzher- 
bert, Strachey, and himself thought it expedient. 

1 November 15, 1782. 

2 Fitzmaurice, Life of Shelburne, iii. 298. » Ibid. iii. 287. 



THE NEGOTIATIONS 193 

" The Tories stick ; Strachey is coming again, 
and may be expected to-day," said Oswald to Jay, 
as he read his dispatches on the 22d.^ On the 
24th Strachey arrived in Paris, and the day fol- 
lowing, all the commissioners met at Oswald's 
lodgings. Strachey announced that the cabinet 
unanimously condemned the article respecting the 
Tories. " The affair of the fisheries, too, was 
somewhat altered," wrote Adams in his diary. 
" They could not admit us to dry on the coasts of 
Nova Scotia, nor to fish within three leagues of 
the coast, nor within fifteen leagues of the coast 
of Cape Breton. The boundary they did not ap- 
prove : they thought it too extended, too vast a 
country, but they would not make a difficulty. . . . 
I could not help observing that the ideas respect- 
ing the fisheries appeared to me to come piping 
hot from Versailles." ^ " The restitution of the 
property of the loyalists," was however, " the 
grand point on which a final settlement depended. 
Jay asked if this was the ultimatum of the min- 
istry, and Strachey answered reluctantly ' No,' 
and admitted that Oswald had absolute authority 
to conclude and sign." Adams then, by docu- 
ments, disproved the exclusive rights of the French 
to any part of the fishery ; he argued the depend- 
ence of New England on the fishery, and re- 
marked that "if a germ of war was left any- 
where " it would most probably be in that article. 

1 John Adams's Works, iii. 324. 

2 Ibid. iii. 327, 328. 



194 JOHN JAY 

The proposition concerning the royalists was unan- 
imously rejected, Franklin being especially em- 
phatic. For the next four days the discussion 
continued. On the 28th Adams drew up an ar- 
ticle on the fishery, and the same day Laurens 
arrived for the first time, and inserted, on the day 
of signing, the clause, which afterwards caused so 
much controversy, prohibiting the Bi'itish troops 
from " carrying away any negroes or other pro- 
perty of the inhabitants." On the 29th Strachey 
endeavored to have the word " liberty " substituted 
for " right " in the fishery clause, but was boldly 
answered by Adams. Fitzherbert proposed send- 
ing a courier to London for advice before signing, 
but was met by the suggestion that, if so, the 
courier should take also a memorial for damages 
done by British troops. After consulting together, 
the English commissioners agreed to accept the 
American terms about the fisheries, and their 
ultimatum : that there should be no further per- 
secution of the royalists, and that Congress should 
recommend the various state legislatures to restore 
confiscated estates of English citizens and of 
Americans who had not taken up arms.^ Notice 
of their agreement was then communicated to de 
Vergennes.2 " Are we to be hanged or applauded," 
wrote Strachey that evening, " for thus rescuing 
you from the American war? If this is not as 
good a peace as was expected, I am confident it is 

1 Bancroft, x. 589. 

2 Franklin's Works, ix. 488. 



THE NEGOTIATIONS 195 

the best that could have been made." On Novem- 
ber 30 the treaties were signed, sealed, and deliv- 
ered, and all went out to Passy to dine with Dr. 
Franklin.^ It was merely provisional articles that 
were signed as yet, but they were to constitute 
the treaty of peace between Great Britain and the 
United States so soon as a definite treaty should 
be concluded between Great Britain and France. 
The government was to be bound only by what 
Oswald should sign ; and the commissioners were 
prompt to seize the happy moment. " We must 
have signed," said Adams, " or lost the peace. The 
peace depended on a day. If we had not signed, 
the ministry would have changed." ^ 

Relying perhaps on the instructions of Congress, 
and underestimating the ability of the American 
commissioners, de Vergennes had taken little pains 
to inform himself of the progress of the nego- 
tiations. " It behooves us to leave them to their 
illusions," he wrote to Luzerne, in October, " to do 
everything we can to make them fancy that we 
share them, and unostentatiously to defeat any at- 
tempts to which these illusions may carry them if 
our cooperation is required." . . . They " have all 
the presumption of ignorance, but there is reason 
to expect that experience will erelong enlighten 
and improve them." ^ On November 23 he wrote 
again that the king was not obliged " to prolong 

1 Strachey to Nepean, November 29, 1782, Stevens MSS. 
^ John Adams's Works, viii. 88. 
8 October 14, 1782, Stevens MSS. 



196 JOHN JAY 

the war in order to sustain the ambitious preten- 
sions which the United States may form in refer- 
ence to the fishery or the extent of boundaries." ^ 
When the provisional articles were shown to him, 
de Vergennes wrote to Rayneval that the English 
had rather bought a peace than made one, and 
that their concessions exceeded anything he had 
believed possible ; ^ and Rayneval replied that the 
treaty seemed to him like a dream. At the time 
no offense was expressed by the French court, not 
a word of reproach but only of congratulation by 
de Vergennes. It was not tiU more than a fort- 
night afterwards that a rumor prevalent in Eng- 
land, that the preliminary articles were a final 
settlement, and a consequent fear that in such 
case the United States might join England against 
France, moved de Vergennes to write his sharp 
letter of December 15 to Franklin,^ and urge Lu- 
zerne to inform Congress of the irregular action of 
the commissioners. But Franklin's astute, diplo- 
matic reply, pleading guilty of " neglecting a point 
of bienseance," and hoping that, to avoid gratify- 
ing the English, "this little misunderstanding 
. . . will be kept a secret," together with the pass- 
ing of the temporary alarm, induced Vergennes to 
countermand his letter to Luzerne ; and in token 
of his good-will he promised Franklin a new loan 
of six million livres. It is certainly unnecessary 

^ Vergennes to Luzerne, De Circourt, iii. 294. 
2 December 4, 1782, Stevens MSS. 
8 Sparks, Franklin, ix. 449. 



THE NEGOTIATIONS 197 

to search for a cause of offense where de Vergennes 
so obviously found none. 

January 20, 1783, the commissioners published 
a formal declaration that so long as peace was 
not concluded between France and England the 
preliminary articles did not change the relations 
between England and the United States. The 
same day preliminary articles of peace were signed 
at Paris between Great Britain and France, and 
Great Britain and Spain, and a cessation of arms 
was proclaimed between Great Britain and the 
United States. From that day the provisional 
articles took effect. 

The opposition to the terms of peace in Par- 
liament drove Shelburne from office, and in the 
interim of a month, which took place between his 
resignation and the accession to power of the coali- 
tion ministry on April 2, under the Duke of Port- 
land, Oswald was recalled and replaced by David 
Hartley, with instructions to secure amendments 
to the Provisional Articles and to negotiate a com- 
mercial treaty. Hartley proposed articles in favor 
of the royalist landowners, and the Americans 
suggested stipulations for the payment of pris- 
oners' expenses ; while Franklin drafted an article 
protecting non-combatants in the event of a future 
war. But none of these were adopted. In com- 
merce the Americans demanded perfect recipro- 
city ; while Hartley was instructed by Fox ^ to in- 
sist on the admission of British goods into America 

^ April 10, 1783, Jay, Peace Negotiations, p. 163. 



198 JOHN JAY 

while excluding American goods from British ports, 
especially from the West Indies. De Vergennes, 
wrote Fitzherbert April 18, desired to attract 
American trade to France, and Franklin con- 
curred with him, while Adams and Jay would give 
the preference to England. " I hope," wrote Jay 
in March, " we shall soon be in the full possession 
of our country and of peace ; and as we expect to 
have no further cause of quarrel with Great Brit- 
ain, we can have no inducement to wish or to do 
her injury ; on the contrary, we may become as 
sensible to her future good offices as we have been 
to her former evil ones. A little good-natured wis- 
dom often does more in politics than much slippery 
craft." ^ If Shelbume had continued in office, a 
commercial treaty might have been arranged, but 
with his fall a reaction of feeling set in against 
America, and the ministries that followed one an- 
other, with shifting personalities and indefinite 
policies, thwarted the efforts of the commissioners. 
Fox doubted the authority of Congress, and by a 
royal proclamation of July 2 the West India carry- 
ing trade was confined to British ships. Finally, 
on July 27, the commissioners decided to drop all 
commercial articles in the definitive treaty, and 
leave everything of that kind to a future special 
treaty. On September 3, with the exception of the 
so-called separate article concerning the boundaries 
of Florida, which the events of war had made un- 
necessary, the Provisional Articles were adopted as 

1 To Benjamin Vanghanj March 28, 1783, Jay's Jay^ ii. 116. 





6/t^V\G^ 



THE NEGOTIATIONS 199 

the final treaty between England and America, and 
were signed at Paris in the morning. A special 
courier conveyed the news to de Vergennes at Ver- 
sailles, whereupon the definitive treaties between 
France and Spain and Great Britain were signed 
in the presence of the ambassadors of the mediat- 
ing imperial courts, an empty compliment in which 
England refused to participate. 

By the treaty the United States gained more 
than Congress had ventured to propose or even 
hope for. " The boundaries must have caused as- 
tonishment in America," de Vergennes had written 
in July to Luzerne. " No one can have flattered 
himseK that the English ministers would go be- 
yond the head-waters of the rivers falling into the 
Atlantic." ^ Territory was acquired to the extent 
of more than twice what was proposed by France 
and Spain to England in the summer of 1782. In 
spite of the opposition of the powerful ally, on 
whose good offices Congress relied to obtain any 
satisfactory terms at all, the right to the fisheries, 
the navigation of the Mississippi, and an unim- 
peded opening to the Pacific were secured. To 
Jay, more than to any other of the commissioners, 
his contemporaries awarded the credit for this di- 
plomatic triumph. " The New England people," 
wrote Hamilton, " talk of making you an annual 
fish offering as an acknowledgment of your exer- 
tions for the participation of the fisheries." " The 
principal merit of the negotiation was Mr. Jay's," 

1 July 21, 1783, Stevens MSS. 



200 JOHN JAY 

said Jolin Adams, whose praise was seldom exces- 
sive : ^ and at the time he wrote : " A man and his 
office were never better united than Mr. Jay and 
the commission for peace. Had he been detained 
in Madrid, as I was in Holland, and all left to 
Franklin as was wished, all would have been lost."^ 
Fitzherbert, when Lord St. Helens, in 1838, added 
his testimony from the English point of view, that 
" it was not only chiefly but solely through his 
[Jay's] means that the negotiations of that period, 
between England and the United States, were 
brought to a successful conclusion." ^ Nor is it 
without significance that de Vergennes should have 
complained of " characters so little manageable as 
those of Jay and Adams." ^ Further, it is worth 
noting that, though Jay had successfully opposed 
the policy of France, a Frenchman could appre- 
ciate his motives : " I do not credit him with grati- 
tude to us," wrote Luzerne to de Vergennes, " but 
he is incapable of preferring England to us ; he 
glories in being independent, and his desire to 
prove his attachment to his country sometimes 
makes him unjust. But we need not fear from 
him any premeditated act prejudicial to the alli- 
ance." ^ 

1 John Adams to John Jay, November 24, 1800, Jay's Jay, 
i. 418. 

^ John Adams to Jonathan Jackson, November 17, 1782, John 
Adams's Works, ix. 516. 

3 Lord St. Helens to Judge William Jay, July 29, 1838. 

* Vergennes to Luzerne, December 24, 1783, Stevens MSS. 

5 Luzerne to Vergennes, September 26, 1783, Stevens MSS. 



THE NEGOTIATIONS 201 

In the autiinm Mr. Jay's family took a house at 
Chaillot, near Passy, on the road to Paris, and there 
Mrs. Jay and the children spent several months, 
while Jay himself went to England to try the wa- 
ters of Bath for his health, having first obtained 
from Congress special leave of absence. His wife 
wrote : " Everybody that sees the house is surprised 
it has remained so long unoccupied. It is so gay, 
so lively, that I am sure you '11 be pleased. Yester- 
day the windows were open in my cabinet while I 
was dressing, and it was even then too warm. Dr. 
Franklin and his grandsons, and Mr. and Mrs. 
Coxe and the Miss Walpoles, drank tea with me, 
likewise, this evening, and they all approve of your 
choice. As the sky is very clear and the moon 
shines very bright, we were tempted to walk from 
the saloon upon the terrace, and while the company 
were admiring the situation, my imagination was 
retracing the pleasing evenings that you and I have 
passed together in contemplating the mild and gen- 
tle rays of the moon." ^ Dr. Franklin was a near 
neighbor, and sometimes enjoyed an old friend's 
privilege of making fun of pretty Mrs. Jay's devo- 
tion to her husband. " Dr. Franklin charges me 
to present you his compliments," she says, " when- 
ever I write to you, but forbids my telling you how 
much pains he takes to excite my jealousy at your 
stay. The other evening, at Passy, he produced 
several pieces of steel ; the one he supposed you, at 
Chaillot, which being placed near another piece, 

1 From Mrs. Jay, November 6, 1783. 



202 JOHN JAY 

which was to represent me, it was attracted by 
that and presently united ; but when drawn off 
from me, and near another piece, which the Doctor 
called an English lady, behold, the same effect! 
The company enjoyed it much, and urged me to 
revenge ; but all could not shake my faith in my 
beloved friend." ^ "It gives me pleasure," was 
Jay's reply from Bath, " to hear that the Doctor 
is in such good spirits. Though his magnets love 
society, they are nevertheless true to the pole, and 
in that I hope to resemble them." ^ 

While Mrs. Jay was reading " Evelina," which 
Miss Walpole lent to her, watching the ascent of 
a " globe of Montgolfier's," exchanging repartees 
with Dr. Franklin and having the children inocu- 
lated. Jay was at Bath, having stayed only a few 
days in London, and making but one short trip 
to Bristol to attend to a bequest in the will of 
his cousin Peloquin. In London he found many 
Americans, and was most scrupulous in adjusting 
his behavior to them according to their patriotism. 
" Having been very well assured that the conduct 
of Judge Ludlow, Mr. Watts, H. White, and P. 
V. Schaack had been perfectly unexceptionable," 
he wrote to Egbert Benson, "and that they had 
not associated with the abominable Tory Club in 
London (which filled the public papers with the 
most infamous lies against us), I received and re- 

1 From Mrs. Jay, November 18, 1783, Queens of American So- 
ciety, p. 67. 

2 Ibid. 



THE NEGOTIATIONS 203 

turned their visits. Vadill also made me a visit, 
but I never returned it. Reports of the cruelties 
practiced by my old friend Jas. De Lancey of W. 
Chester News also kept us asunder. I wish these 
reports may prove as groundless as he says they 
are. He was an honest friend to me, and I sin- 
cerely lament the circumstances which prevent my 
taking him by the hand as cordially as ever. I 
have not seen any of Gen. De Lancey's family. I 
once met Billy Bayard on the street, but we passed 
each other as perfect strangers." ^ At Bath he saw 
much of the well-known Countess of Huntington. 
" She inquired about you in a very friendly manner, 
and is an enthusiast for America," he tells his wife. 
" Her heart is much set on the conversion of our 
Indians ; she will find it a difficult task, but her 
wishes are laudable, though perhaps too sanguine." ^ 
The waters, aided by rhubarb and much walking, 
cured his dysentery and sore throat, and he re- 
turned to Paris in January. 

He refused repeated offers of an appointment to 
London or Paris, urging the propriety of making 
Adams the first minister from America to Eng- 
land, and declaring his intention to become and 
remain a private citizen and a lawyer. After a 
long and unnecessary delay caused by dilatoriness 
of his secretary, Carmichael, in settling his accounts 
with Barclay, the agent of Congress, he at length 
left Paris with his family on May 16 for Dover, 

1 To E. Benson, December 15, 1783, Jay MSS. 

2 December 5, 1783, Jay MSS. 



204 JOHN JAY 

where he took ship for New York. " Your public 
and private character," wrote David Hartley in a 
farewell letter, " has impressed me with unalterable 
esteem for you as a public and private friend ; . . . 
if I should not have the good fortune to see you 
again, I hope you will always think of me as eter- 
nally and unalterably attached to the principles of 
renewing and establishing the most intimate con- 
nection of amity and alliance between our two 
countries." John Adams wrote to Barclay : " Our 
worthy friend, Mr. Jay, returns to his country like 
a bee to his hive, with both legs loaded with merit 
and honor." ^ 
1 To Thomas Barclay, May 24, 1784, Hist. Mag. 1869, p. 358. 



CHAPTER IX 

SECRETARY FOR FOREIGN AFFAIRS 

1784-1789 

On July 24, 1784, Jay was once again in New 
York, after an absence from the country of some 
five years. He was welcomed by the city fathers 
with an address and the freedom of the city in a 
gold box, " as a pledge of our aif ection and of our 
sincere wishes for your happiness." He had in- 
tended to " become a simple citizen," as he wrote 
from France to Van Schaack, and to take up again 
the practice of his profession ; but on landing he 
found that Congress had two months before ap- 
pointed him secretary for foreign affairs. This 
office had been established in 1781, and had been 
occupied by Chancellor Livingston till June, 1783, 
when he resigned, according to Luzerne,^ on ac- 
count of the insufficient salary. It then remained 
vacant till the following May, when Congress, 
hearing from Franklin of Jay's expected return, 
elected him the same day on the motion of El- 
bridge Gerry. For some months Jay withheld his 
acceptance, as he was unwilling, for reasons of 
private business, to be detained at Trenton, where 
^ Luzerne to Vergennes, May 19, 1782, Stevens MSS. 



206 JOHN JAY 

Congress had been in session and was to reassemble 
in September, and also because be was reluctant to 
assume such responsibility without the privilege of 
selecting his own clerks, a power which Congress 
had heretofore reserved to itself. Meantime he 
was elected a delegate to Congress by the state 
legislature ; but on December 21, Congress having 
decided to adjourn to New York, and yielding in- 
the matter of the appointments of his subordinates, 
Jay accepted the secretaryship, and resigned his 
seat on the floor. 

Almost immediately afterwards he was tempted 
to become a candidate for governor ; but he re- 
fused to desert the federal service, saying : " A 
servant should not leave a good old master for the 
sake of a little more pay or a prettier livery." To 
the more conservative Whigs, who were soon to be 
known as Federalists, the official conduct of Gov- 
ernor Clinton had become intensely objectionable, 
partly on account of his appointments to office of 
personal adherents, partly because he was the most 
vehement partisan of those harsh laws against the 
royalists, which Jay and Hamilton regarded as 
both unjust and impolitic. General Schuyler, who 
with Livingston was also named as an anti-Clinton 
candidate, urged Jay again and again, with singu- 
lar self-effacement, to reconsider his refusal, since 
he was "the only man capable of stemming the 
torrent of evil, which with accelerating rapidity 
was rolling to the goal of debasement." But to 
Jay the occasion did not seem sufficiently critical, 



SECRETARY FOR FOREIGN AFFAIRS 207 

and even this fervent and florid appeal was in 
vain. 

While Livingston had held the place, the secre- 
tary for foreign affairs had been little more than 
a mere clerk of Congress, and Jay now applied 
himself to the reorganization of the department, 
having the papers filed for the first time in a me- 
thodical manner, and asserting and maintaining on 
every occasion the dignity of the office. He pro- 
tested earnestly and successfully against the im- 
propriety of permitting foreign correspondence 
pertaining to his department to be communicated 
to Congress before being submitted to his scrutiny .^ 
He made frequent use of his privilege to appear 
on the floor of Congress, and to speak on questions 
of foreign policy ; and Congress constantly asked 
for and deferred to his advice. In a short time 
the secretaryship thus became the first office in 
consequence under the Confederation ; for through 
it was transacted the correspondence between the 
federal government and the several States as well 
as that with foreign nations. " The political im- 
portance of Mr. Jay increases daily," wrote Otto 
to de Vergennes in January, 1786. "Congress 
seems to me to be guided only by his directions, 
and it is as difficult to obtain anything without 
the cooperation of that minister as to bring about 
the rejection of a measure proposed by him." 2 
Yet all this time the accommodations provided for 

1 Madison's Works, i. 142. 

^ Bancroft, Const. Hist. pp. 479, 480. 



208 JOHN JAY 

the foreign office were miserably insufficient. " As 
late as 1788 there were, . . . besides the secretary 
and his assistants, only two clerks, or just enough, 
as may be inferred from a report of this date, for 
one of them to be in the office while the other 
went to luncheon. The quarters of the office, the 
report tells us, consisted of only two rooms, one of 
them being used as a parlor, and the other for the 
workshop." ^ 

In the summer of 1785, the court of Spain 
appointed practically a resident minister to the 
United States, though under the modest title only 
of encargado de negocios^ Don Diego de Gardo- 
qui, with a view to settle the controversy about 
the navigation of the Mississippi, which had been 
guaranteed to the United States by the treaty of 
peace ; also to arrange a commercial treaty. The 
negotiations were at once intrusted to Jay (whom 
it had been previously decided to send to Spain for 
that purpose), with full power ; which, however, 
was limited later by the instruction " to stipulate 
the right of the United States to their territo- 
rial bounds and the free navigation of the Missis- 
sippi ... as established in their treaties with 
Great Britam." 2 In 1783 Count Florida Blanca, 
in conversation with Lafayette, had seemed to 
yield the Spanish claims to the western territory, 
to which, indeed, Spain had no valid title ; but 
Gardoqui now asserted that this understanding 

^ J. F. Jameson, Essays on the Const. Hist, of the U. S. p. 165. 
* Secret Journals, iii. 586. 



SECKETARY FOR FOREIGN AFFAIRS 209 

was a mistake. " In a word," wrote Jay to Lafay- 
ette, "they do not mean to be restricted to the 
limits established between Britain and us." ^ Gar- 
doqui was equally inflexible against yielding the 
free navigation of the Mississippi. But he was 
willing to conclude a commercial treaty on liberal 
terms, a matter of first importance to the Northern 
States, where, especially in New England, grave 
commercial distress existed, for which such a treaty 
was thought to be the only remedy. 

Jay was finally convinced that the crisis would 
justify a surrender of the navigation for a period 
of twenty-five or thirty years. August 3, 1786, in 
a speech before Congress, he stated his reasons 
concisely : first, because no treaty can be made 
imless that question is settled; secondly, because 
the navigation of the Mississippi is not now im- 
portant, or likely to be so for many years ; thirdly, 
because, as we are not prepared for war, Spain 
can exclude us from that navigation indefinitely. 
" Why, therefore," he concluded, " should we not 
(for a valuable consideration, too) consent to for- 
bear to use what we know is not in our power to 
use ? " 2 These reasons were logical but inconclu- 
sive, since they disregarded the one decisive fact 
that the Southwest was becoming rapidly popu- 
lated by colonists who strongly insisted on the free 
navigation of their great river. " The act which 
abandons it," wrote Jefferson, " is an act of sepa- 

1 June 16, 1786, Jay's Jay, ii. 187. 
* Secret Journals, iv. 45, 53. 



210 JOHN JAY 

ration between the eastern and the western coun- 
try." ^ Jay, doubtless, was not unmindful of the 
instructions, which Congress had sent to him in 
Spain only four years before, on the motion of the 
Southern delegates : to resign absolutely all claim 
to the Mississippi south of the thirty-first paral- 
lel. It was, indeed, due wholly to the sagacity 
which had been then shown by him that the United 
States still possessed any claims to the river to 
arbitrate. Now, however, the political situation 
had changed completely with the march of events ; 
" while Congress was discussing the points of the 
treaty a nation was created," ^ and a nation which 
could not be disregarded. Accordingly, on Au- 
gust 28, every Southern delegate save one voted 
to revoke the secretary's commission to negotiate. 
The motion was defeated, and the next day, by 
vote of seven States to five, Jay was again given 
unlimited power. *' It rests wholly with Jay," 
wrote Madison to Randolph, " how far he will pro- 
ceed with Gardoqui, and how far he will communi- 
cate with Congress." ^ 

The next month Jay reported that he had ar- 
ranged an article saving the right of navigation, 
while suspending its use for the period of the 
treaty, but that the negotiation was " dilatory, un- 
pleasant, and unpromising."* Finally Congress 

1 To Madison, January 30, 1787, JefEerson's Works, ii. 87. 

2 Lyman, Diplomacy of the U. S. i. 285. 

8 March 11, 1787, Madison Papers, ii. 622. 

* Jay to Gardoqui, October 17, 1788, Jay MSS. 



SECRETARY FOR FOREIGN AFFAIRS 211 

revoked Jay's powers, in view of the change of 
government about to take place by reason of the 
adoption of the new Constitution. Jay's sugges- 
tion, discussed as it was only in secret session, and 
thought by the Southern statesmen to sacrifice the 
rights of the South to the convenience of the North, 
was the chief cause of the opposition of North Car- 
olina and Virginia to the ratification of the Consti- 
tution ; and that it was an error of judgment was 
frankly admitted by Jay himself in 1788.^ But he 
was actuated by national, not sectional motives, in 
advising what he knew to be a choice of evils ; and 
in the words of one of his severest critics : " In 
the game of applied politics, often a calculus of 
probabilities among contingent events and impon- 
derable forces, a statesman may sometimes show 
more wisdom in being fortuitously wrong as the 
event turns out, than in being fortuitously right 
according to a drift and posture of events which 
could not be foreseen." ^ 

For some years the claims of Beaumarchais to 
compensation, now urged by the agents of France, 
were debated in Congress, a discussion which was 
unfortunately destined to continue a long while yet 
before the end could be achieved. Jay had little 
to do with the matter, but his views were positive. 
" There can be," he wrote to Jefferson in Paris, 
"but little clashing of interests between us and 
France. . . . These engagements, however, give 

^ Secret Journals, iv. 452. 

2 James C. Welling, The Land Politics of the U. S. p. 19. 



212 JOHN JAY 

me niucli concern. Every principle of honor, jus- 
tice, and interest calls upon us for good faith and 
punctuality, and yet we are unhappily so circum- 
stanced, that the moneys necessary for the purpose 
are not provided." Indeed, though his political 
opponents found it convenient to denounce Jay as 
unfriendly to France, his official conduct regarding 
her was that of a friend. In reporting on the 
complaints by French merchants of laws of Massa- 
chusetts and New Hamphire discriminating against 
French vessels, he urged that Congress should re- 
commend the repeal of such acts. " The French," 
he said, " have extended liberty of commerce to the 
United States beyond what they were bound to do 
by the treaty, and it certainly would not be kind 
to repay their friendly relaxation " by imnecessary 
restrictions.^ " But the commerce of the country," 
he added, " must suffer from partial and discord- 
ant regulations . . . until it is under one direc- 
tion." Since 1782, a convention defining the 
rights and duties of consuls had also been in nego- 
tiation with France, but it came to nothing, though 
Jay clearly saw its necessity. " The foreign con- 
suls here," he said, " have no other authority than 
what they may derive from the laws of nations, 
and the Acts of particular States. The propriety 
of these Acts appears to be questionable, especially 
as national objects should be regulated by national 
laws." 

Jay was also anxious to effect a commercial 
1 Dipl. Corr. 1783-89, i. 176. 



SECRETARY FOR FOREIGN AFFAIRS 213 

treaty with France on the basis of perfect recipro- 
city. Besides urging his views on Jefferson, the 
minister to France, he wrote to Lafayette very 
freely : " Without any attempt to dress my ideas 
a la mode de Paris — have we any reason to flat- 
ter ourselves that you will encourage us to drink 
your wines by permitting your islands to eat our 
bread ? . . . Commercial privileges granted to us 
by France at this season of British ill humor 
would be particularly grateful, and afford conclu- 
sive evidence against its being the plan of the two 
kingdoms to restrict our trade to the islands." ^ 
" Toleration in commerce," he wrote a few years 
later to the same friend of America, " like tolera- 
tion in religion, gains ground, it is true ; but I am 
not sanguine that either will soon take place to 
their due extent." ^ To Jay, indeed, the benefit 
of free trade seemed axiomatic. " How freely 
would it redound to the happiness of all civilized 
people," he exclaimed in a letter to Lord Lans- 
downe, " were they to treat each other like fellow 
citizens ! Each nation governing itself as it 
pleases, but each admitting others to a perfect 
freedom of commerce. The blessings resulting 
from the climate and local advantages of one coun- 
try would then become common to all, and the 
bounties of nature and conveniences of art pass 
from nation to nation without being impeded by 
the selfish monopolies and restrictions with which 

1 To Marquis de la Fayette, January 19, 1785, Jay MSS. 

2 To Marquis de la Fayette, April 26, 1788, Jay MSS. 



214 JOHN JAY 

narrow policy opposes the extension of divine 
benevolence." ^ 

In the autumn of 1785 the Algerines declared 
war, or, rather, resumed their piracies, on the ces- 
sation of tribute. The war Jay did not deem a 
great evil, but rather hoped that it might become 
" a nursery for seamen, and lay the foundation of 
a respectable navy." ^ He recommended at once, 
but in vain, the organization of a board of admi- 
ralty, the building of five forty-ton ships, and the 
arming of American traders in the Mediterranean 
at public expense. In 1787 he wrote to Lafayette : 
" The great question, I think, is whether we shall 
wage war or pay tribute ? I for my part prefer 
war." ^ But he only succeeded in persuading Con- 
gress to allow Jefferson, in 1788, to provide for 
the subsistence of American captives at Algiers 
out of the fund set apart for their redemption.* 

Much complaint and public clamor arose from 
the retention by Great Britain of the northwestern 
posts, in violation of the seventh article of the 
treaty of peace. But when John Adams, the 
American minister at London, formally protested, 
the English government retorted that the fourth 
article, securing every facility for the collection of 
debts due to Englishmen, was violated with equal 
openness by the United States. The correspond- 

1 April 20, 1786, Jay MSS. 

2 To the President of Congress, October 13, 1785. 
8 November 16, 1787, Jay MSS. 

* To the President of Congress, September 12, 1788, Jay MSS. 



SECRETARY FOR FOREIGN AFFAIRS 215 

ence was referred to Jay. " The result of my in- 
quiries into the conduct of the States relative to 
the treaty," he wrote to Adams, " is, that there has 
not been a single day since it took effect on which 
it has not been violated in America by one or 
other of the States ; " ^ and these conclusions were, 
with a candor rare in a public officer, embodied 
with appropriate recommendations in his report 
to Congress on October 13. " The amount of the 
report, which is an able one," said Madison in a 
letter to Jefferson, " is, that the treaty should be 
put in force as a law, and the exposition of it left, 
like that of other laws, to the ordinary tribunals." ^ 
Congress passed resolutions accordingly, and or- 
dered them transmitted to the several States, to- 
gether with a circular letter written by Jay, urging 
the repeal of all laws in contravention of the treaty ; 
but the States as usual paid little heed. 

Besides these more important transactions, there 
was much to occupy the time of the secretary for 
foreign affairs. There were reports to make on 
individual claims against the government urged by 
M. Otto, the representative of France, or by Mr. 
Temple, who had been received as British consul, 
on Jay's advice, as a matter of comity. On the 
recommendation of Jay a consul was appointed at 
Canton,^ with which port a promising trade was 
already begun. For reasons that do not appear, 

1 To John Adams, November 1, 1786, Jay's Jay, ii. 191. 

2 Madison Papers, ii. 294. 
8 January, 1786. 



216 JOHN JAY 

but apparently on Jay's suggestion that there 
should be some official supervision of the mails, 
Congress by a secret act, September 7, 1785, au- 
thorized him in his discretion to open letters in the 
post-office ; ^ a singular grant of arbitrary power 
which he is said never to have exercised. 

Then, as now, heads of departments were beset 
by applicants for office or favor ; but in granting 
these Jay was unusually punctilious. He refused 
curtly his brother Frederick's request to ask Gar- 
doqui to recommend him as a reputable merchant 
to sell a damaged cargo. He even declined to 
serve John Adams, by recommending Adams's 
son-in-law. Colonel Smith, to succeed him at Lon- 
don. "In other countries," was Jay's answer, "it 
is not unusual to consult . . . the opinion of the 
secretary for foreign affairs respecting the officers 
to be appointed in that department. . . . But the 
case is different here. Although Congress com- 
monly refer the propriety of measures to my con- 
sideration, yet they uniformly forbear to consult 
me about the persons to be appointed to any place 
or office however important. . . . These consider- 
ations have led me to make a rule to keep within 
the limits of my department, and not to interfere 
or to endeavor to influence any elections or appoint- 
ments in Congress." ^ 

Jay had other business, not connected with the 
secretaryship. In 1785 he was appointed by the 

^ From Secretary Thomson, September 8, 1785, Jay MSS. 
2 To Colonel W. S. Smith, July 20, 1787, Jay MSS. 



SECRETARY FOR FOREIGN AFFAIRS 217 

State of New York one of its agents to determine 
its controversy with Massachusetts concerning 
boundaries ; but he resigned early the next year. 
When a committee was appointed by Congress on 
a plan for the government of future territories, 
he was requested to attend and advise. " Shall 
the government," he wrote to James Monroe, " be 
upon colonial principles, under a governor, coun- 
cil, and judges of the United States, . . . and 
then admitted to a vote in Congress with the com- 
mon right of the other States ; or shall they be 
left to themselves until that event ? " ^ 

Under an act of New York for the gradual man- 
umission of slaves, a society was formed for pro- 
moting it and protecting such as were freed. In 
1786 Jay was appointed by the society one of the 
trustees for receiving donations, and two years 
later was elected to its presidency, which he re- 
tained tiU, being chief justice, he thought proper 
to resign. 

Always a devout Episcopalian, he was a delegate 
from New York to the General Convention of the 
church, which met at Philadelphia in June, 1786. 
There he drafted the letter sent to the English 
bishops, requesting ordination for the American 
candidates, while defending the alterations made 
in the liturgy. On its dissolution the convention 
honored him with a special vote of thanks.^ 

The secretary for foreign affairs was expected to 
perform certain social duties. On returning from 
1 April 20, 1786, Jay MSS. » Jay MSS. 



218 JOHN JAY 

Europe he took a house in New York for a year, 
and began building one for himself at No. 8 Broad- 
way, which was finished the following spring. 
Here was naturally the centre of official entertain- 
ment so long as New York remained the capital. 
In Mrs. Jay's " Dinner and Supper List for 1787 
and 1788 " appear the names of most of the well- 
known colonial families, and of the most noted 
statesmen who were brought to New York by the 
Congress under the Confederation and the first 
Congress under the Constitution. " Mrs. Jay gives 
a dinner almost every week," wrote Mrs. Smith to 
her mother, Mrs. John Adams, " besides one to the 
corps diplomatique on Tuesday evening." ^ On 
May 20, 1788, she wrote again : " Yesterday we 
dined at Mrs. Jay's, in company with the whole 
corps diplomatique. Mr. Jay is a most pleasing 
man, plain in his manners, but kind, affectionate, 
and attentive ; benevolence is stamped on every 
feature. Mrs. Jay dresses showily, but is very 
pleasing on a first acquaintance. The dinner was 
a la Fran^aise, and exhibited more European taste 
than I expected to find." ^ It was doubtless in a 
simpler style that Mr. and Mrs. Adams were en- 
tertained there in the spring of 1789, for Mrs. 
Adams, to judge from her letter thanking Mrs. Jay 
for her hospitality, was treated quite as one of the 
family. " Our mush and lemon brandy were of 
great service to us, and we never failed to toast the 
donor, whilst our hearts were warmed by the recol- 
1 Queens of American Society, p. 75. ^ Ibid. 



SECRETARY FOR FOREIGN AFFAIRS 219 

lection. I hope, my dear madam, that your health 
is better than when I left you, and this not for 
your sake only, but for that of your worthy part- 
ner, who I am sure sympathized so much with you, 
that he never really breakfasted the whole time I 
was with you." ^ 

By the year 1788 the wheels of government had 
fairly stopped, the Confederation was little more 
than a name, and the duties of the secretary for 
foreign affairs consisted mainly in proving to Con- 
gress the futility or absurdity of any action. For 
this reason the negotiations with Spain were sum- 
marily closed ; the treaty with England was incapa- 
ble of enforcement ; and when a loan was proposed, 
necessary as money was, he felt obliged to say: 
" Congress can make no certain dependence on the 
States for any specific sums, to be required and 
paid at any given periods, and consequently is not 
in a capacity safely to pledge its honor and faith 
as a borrower." ^ It was his own experience which 
he embodied in his analysis of the weakness of the 
government in his " Address to the People of the 
State." " They [the Congress] may make war, 
but are not empowered to raise men or money to 
carry it on. They may make peace, but without 
power to see the terms of it observed. They may 
form alliances, but without ability to comply with 
the stipulations on their part. They may enter 
into treaties of commerce, but without power to 

1 February, 1779, Jay MSS. 

2 Lamb, Hist, of New York, ii. 292. 



220 JOHN JAY 

enforce them at home or abroad. They may bor- 
row money, but without having the means of re- 
payment. They may partly regulate commerce, 
but without authority to enforce their ordinances. 
They may appoint ministers and other officers of 
trust, but without power to try or punish them for 
misdemeanors. They may resolve, but cannot exe- 
cute, either with dispatch or vdth secrecy. In 
short, they may consult, and deliberate, and re- 
commend, and make requisitions, and they who 
please may regard them." ^ 

The national life was not secured by the treaty 
of peace, which only gave an opportunity for it ; 
and the time between 1783 and the adoption of the 
Constitution of 1788 was, perhaps, " the most criti- 
cal period of the country's history." ^ The people 
were restless under the depression of trade and the 
depreciated currency ; rioting threatened in many 
States, and in Massachusetts became rebellion. " I 
am uneasy and apprehensive," wrote Jay to Wash- 
ington, " more so than during the war. Then we 
had a fixed object, and though the means and time 
of obtaining it were often problematical, yet I did 
firmly believe that we should ultimately succeed, 
because I did firmly believe that justice was with 
us." The liberty so dearly won seemed about to 
be lost forever in the imminent anarchy. "If 

1 Address, p. 6 ; Ford, Pamphlets on the Constitution, Brooklyn, 
1888, p. 67. 

^ Trescot, Diplomatic History, p. 9. 

3 June 27, 1786, Marshall, Life of Washington, ii. 107. 



SECRETARY FOR FOREIGN AFFAIRS 221 

faction should long bear down law and govern- 
ment," were his gloomy words to Adams, " tyranny 
may raise its head, and the more sober part of the 
people may even think of a king." ^ 

The reasons for the failure of the Confederation 
were obvious, and Jay laid his finger on those that 
were fundamental. " To vest legislative, judicial, 
and executive powers in one and the same body of 
men, and that, too, in a body daily changing its 
members, can never be wise. In my opinion those 
three great departments of sovereignty should be 
forever separated, and so distributed as to serve as 
checks on each other." ^ This principle became 
the corner-stone of the federal Constitution. Gov- 
ernment by committees was another chief cause of 
executive procrastination and inconsistency. " In 
my opinion," Jay wrote to M. Grand in Paris, 
" one superintendent or commissioner of the trea- 
sury is preferable to any greater number of them ; 
indeed, I would rather have each department under 
the direction of one able man than of twenty able 
ones ; " ^ and modern publicists have reached the 
same conclusion. Finally, coerceive power in the 
federal government was essential ; " a mere gov- 
ernment of reason and persuasion," was Jay's un- 
willing testimony, " is little adapted to the actual 
state of human nature." * 

1 To John Adams, May, 1786. 

2 To Thomas Jefferson, August 18, 1786, Jay's Jay, i. 256. 
8 April 28, 1785. 

* To Thomas Jefferson, April 24, 1787. 



222 JOHN JAY 

The remedy lay in securing a more centralized 
form of government, acting on the people directly 
and not merely through the States. Jay was in 
this sense a Federalist from the beginning ; a 
strong federal union he considered the real aim 
and spirit of the Revolution ; what was new was 
rather the doctrine of extreme state rights of the 
so called anti-Federalists. "It has, until lately, 
been a received and uncontradicted opinion," he 
stated in the " Federalist," " that the prosperity of 
the people of America depended on their continu- 
ing firmly united; and the wishes, prayers, and 
efforts of our best citizens have been constantly 
directed to that object. But politicians now ap- 
pear who insist that this opinion is erroneous, and 
that instead of looking for safety and happiness in 
union, we ought to seek it in the division of the 
States into distinct sovereignties. However ex- 
traordinary this new doctrine may seem, it never- 
theless has its advocates." ^ Even from France 
Jay had urged the necessity of centralization : " I 
am perfectly convinced that no time is to be lost 
in raising and maintaining a national spirit in 
America. Power to govern the confederacy as to 
all general purposes should he granted and exer- 
cised.^^ ^ In his zeal for nationality he was almost 
extreme. " It is my first wish," he wrote. May 10, 
1785, to John Lowell, " to see the United States 
assume and merit the character of one great na- 

1 Federalist, No. 2. 

2 To Gouverneur Morris, September 24, 1783, Jay's Joy,u. 132. 



SECRETARY FOR FOREIGN AFFAIRS 223 

tion, whose territory is divided into different States 
merely for more convenient government and the 
more easy and prompt administration of justice, 
just as our several States are divided into counties 
and townships for the like purposes." ^ "I am 
convinced," he wrote to John Adams in 1786, 
" that a national government as strong as may be 
compatible with liberty is necessary to give us 
national security or respectability." ^ 

When, therefore, in 1787, the question was put, 
" What is to be done ? " and an answer was de- 
manded. Jay could write to Washington with some 
definiteness. To increase the power of Congress 
would be ineffectual, for the same reasons that 
always make a large committee a dilatory and in- 
consistent executive. " Let Congress legislate, let 
others execute, let others judge. Shall we have a 
king ? Not, in my opinion, while other expedients 
remain untried. Might we not have a governor- 
general, limited in his prerogatives and duration ? 
Might not Congress be divided into an upper and 
lower house, the former appointed for life, the lat- 
ter annually, and let the governor-general (to pre- 
serve the balance), with the advice of a council 
formed, for that only purpose, of the great judi- 
cial officers, have a negative on their acts? . . . 
What powers should be granted to the govern- 
ment, so constituted? ... I think the more, the 
better ; the States retaining only so much as may 
be necessary for domestic purposes, and all their 

1 Jay'8 Jay, i. 190. 2 May 4, Ibid. i. 249. 



224 JOHN JAY 

principal officers, civil and military, being commis- 
sioned and removable by the national govern- 
ment." 1 

The convention which met at Annapolis in the 
autumn of 1786, to frame a uniform system of 
commercial regulations, dissolved without other re- 
sult than recommending a convention of delegates 
from the several States to revise the Articles of 
Confederation. Such a convention Jay thought of 
doubtful constitutionality, as the legislatures from 
which the delegates were to derive their authority 
were themselves not authorized to alter constitu- 
tions. He also feared the effects of delay, in case 
their report was to be purely recommendatory, in- 
operative till ratified by the people. Instead, he 
suggested that Congress should recommend the 
election of state conventions " with the sole and 
express power of appointing deputies to a general 
convention," whose conclusions should have the 
force of law. By this scheme, it has been thought, 
the bitter partisan dissensions that attended the 
adoption of the Constitution might have been 
avoided; 2 but it is doubtful whether the same 
struggle would not have taken place over the elec- 
tion of the delegates, and whether many States 
might not have refused on such conditions to elect 
any delegates at all.^ 

Of the Constitutional Convention, which was 

1 Jay's Jay, i. 254, 255. 

2 Ibid. i. 255. 

8 J. A. Stevens, Mag. Am. History, July, 1878, p. 394. 



SECRETARY FOR FOREIGN AFFAIRS 225 

elected on the recommendation of Congress " to 
establish a firm national government," and which 
met at Philadelphia in May, 1787, Jay was not a 
member ; his appointment was urged by Hamilton, 
was carried in the Assembly, but was defeated in 
the Senate on the ground only of his well-known 
ultra-federal opinions. Of the three delegates from 
New York, two left the convention, one of them, 
Lansing, declaring that the legislature would 
never have sent him had they supposed its powers 
extended " to the formation of a national govern- 
ment, to the extinguishment of their independ- 
ency." ^ 

Jay, however, was not idle in the cause of fed- 
eraKsm. Between October, 1787, and June, 1788, 
the " Federalist " was published serially in the New 
York journals, with the object of recommending 
the cardinal principles of the new form of govern- 
ment ; and " no constitution," according to Chan- 
cellor Kent, " ever received a more masterly and 
successful vindication." ^ " It was undertaken last 
fall," wrote Madison to Jefferson, August 10, 1788, 
" by Jay, Hamilton, and myself. The proposal 
came from the two former. The execution was 
thrown, by the sickness of Jay, mostly on the two 
others." ^ Jay was the author of the second, third, 
fourth, fifth, and sixty-third numbers. The first 
series of papers was a careful but concise argu- 

1 Elliott, Behaies, i. 141. 

' Commentaries, i. 241. 

* Jay's second letter to Dawson, p. 21. 



226 JOHN JAY 

ment to prove that a national government was 
essential to avert " dangers from foreign force and 
influence." " For all general purposes we have 
always been one people ; as a nation we have made 
peace and war, and formed alliances and compacts 
with foreign states. The first and every succeed- 
ing Congress were agreed that the prosperity of 
America depended on its union. Why should it 
be otherwise now ? " ^ 

The States bordering on Spanish and British 
territory " under the impulse of sudden irritations, 
and a quick sense of apparent interest or injury, 
will be most likely by direct violence to excite war 
with those nations ; and nothing can so effectually 
obviate that danger as a national government, 
whose wisdom and prudence will not be diminished 
by the passions which actuate the parties immedi- 
ately interested." ^ But whatever our situation, 
whether united or split into a number of confed- 
eracies, foreign nations will know it and act ac- 
cordingly. Independent and probably discordant 
republics, "one inclining to Britain, another to 
France, and a third to Spain, and perhaps played 
off against each other by the three," would fall an 
easy prey to foreign invasion or encroachment. 
" How soon would dear-bought experience pro- 
claim, that when a people or family so divide, it 
never fails to be against themselves ? " In war, 
what armies could they raise or pay, and how? 
" Who shall settle terms of peace ? And in case 

1 Federalist, No. 2. ^ Federalist, No. 3. 



SECRETAKY FOR FOREIGN AFFAIRS 227 

of disputes, what umpire shall decide between 
them, and compel acquiescence ? " By a national 
union unreasonable causes of war will be less 
likely to arise ; just causes will seldom be in- 
curred ; and it will secure the safety of the States 
" by placing them in a situation not to invite hos- 
tility." With France and Great Britain as our 
rivals in the fisheries and commerce, with Spain 
excluding us from the Mississippi, and Britain 
keeping us from the St. Lawrence, the possibility 
of war must be considered. " War may arise ; 
will not union tend to discourage it ? " ^ With 
separate States making separate and perhaps in- 
consistent treaties with foreign nations, will not 
disunion certainly tend to encourage war ? ^ The 
last number written by Jay, No. 63, was a vindi- 
cation of the treaty-making power vested in the 
Senate ; and the original draft, which is still pre- 
served, with its frequent alterations and interline- 
ations, shows the extreme care with which these 
simply written, popular papers were prepared.^ 

The " sickness " that Madison speaks of, which 
interrupted Jay's work on the " Federalist," was 
due to a wound he received in that singular riot 
known as " The Doctors' Mob." In the spring of 
1788 there were many complaints in the news- 
papers of the rifling of graves, one body being 
taken, it was said, from Trinity Churchyard. 
These complaints were replied to with ridicule as 

1 Federalist, No. 4. * Und. No. 5. 

3 Hist. Mag., May, 1867, p. 267. 



228 JOHN JAY 

showing " a disposition to interrupt the students 
of physics and surgery in their pursuit of know- 
ledge." On Sunday, April 13, some boys play- 
ing by the hospital declared that they saw a limb 
hanging out of a window ; and a mob formed, 
broke into the building, and destroyed some valu- 
able collections. The next morning the mob, two 
thousand strong, started to search the houses of 
the suspected physicians, who had taken refuge in 
the jail for safety. An attack was made on the 
jail; the militia was called out, and the mayor 
and a body of armed citizens marched to its relief. 
" Among those who interposed their personal in- 
fluence for the purpose [of restoring peace] was 
Mr. Jay, the secretary of foreign affairs to Con- 
gress. In proceeding to the scene of action he 
received a severe wound in the head from a stone 
thrown thro' the glass of his chariot." ^ Gradually 
the riots subsided, the ringleaders were arrested 
and indicted, but, in view of the excited state of 
public feeling, the prosecutions were not pushed. 

On February 1, 1788, the legislature of New 
York resolved to submit the report of the Consti- 
tutional Convention to delegates to be chosen by 
the people ; and at the election in the city, late in 
April, out of 2833 votes cast. Jay received all but 
98.2 With the exception, however, of New York 
city and one or two adjoining counties, the State 

^ Wm. A. Dner, quoted with the newspaper accounts in Medi- 
cal Register of N. Y., N. J., and Conn. xxii. 265. 
2 Jay's Jay, i. 264. 



SECRETARY FOR FOREIGN AFFAIRS 229 

was violently anti-Federalist, and it was calculated 
that out of the fifty-seven delegates only eleven 
were favorable to the proposed Constitution. The 
crisis was extreme, and Jay, so soon as he recovered 
from his wound, published anonymously an " Ad- 
dress to the People of the State of New York." ^ 

According to a contemporary, this simply-writ- 
ten, logical pamphlet had " a most astonishing influ- 
ence in converting anti-Federalists to a knowledge 
and belief that the new Constitution was their only 
salvation."^ The author was soon betrayed by 
" the well-known style," and Dr. Franklin urged 
him to sign his name to it, "to give additional 
weight at this awful crisis."^ "If the reasoning 
in the pamphlet ... is sound," Jay replied, " it 
will have its effect on candid and discerning minds ; 
if weak and inconclusive, my name will not render 
it otherwise."* The reasoning of the paper was 
eminently practical and cogent, and its appeal to 
the logic of the situation proved clearly enough the 
truth of the remark, that " we were forced into 
confederation by external, into union by internal, 
necessities." ^ " Our affairs are daily going from 
bad to worse," said Jay, " our distresses are accu- 
mulating like compound interest. . . . Let it be 
admitted that this plan, like everything else devised 

1 Ford, Pamphlets on the Constitution, Brooklyn, 1788, p. 67. 

2 S. B. Webb, April 27, 1788. 

» From J. Vaughan, June 27, 1788, Jay MSB. 

* To J. Vanghan, June 27, 1788, Ibid. 

s H. O. Taylor, Mag. Am. Hist., December, 1878, p. 723. 



230 JOHN JAY 

by man, has its imperfections; that it does not 
please everybody is certain, and there is little reason 
to expect one that will. It is a question of grave 
moment to you, whether the probability of your 
being able to obtain a better is such as to render it 
prudent and advisable to reject this, and run the 
risque." " If this plan is rejected, and a new one 
fails or is long delayed, as it must be, all govern- 
ment meantime coming to a stop, every band of 
union would be severed. Then every State would 
be a little nation, jealous of its neighbors, and anx- 
ious to strengthen itself by foreign alliances against 
its former friends. . . . What in such an event 
would be your particular case ? " The situation 
was indeed almost absurd, when Jay could report 
to Washington that " an idea has taken on, that 
the southern part of the State will at all events 
adhere to the Union, and, if necessary to that end, 
seek a separation from the northern." ^ 

On June 17 the convention met at Poughkeepsie, 
the seat of government ever since the destruction 
of Kingston, and, in spite of the unpromising out- 
look. Jay was able to foretell with fair accuracy 
the course of the opposition. " The greater number 
are, I believe, averse to a vote of rejection ; some 
would be content with recommendatory amend- 
ments ; others wish for explanatory ones to settle 
constructions which they think doubtful; others 
would not be satisfied with less than absolute and 
previous amendments, and I am mistaken if there 
1 May 29, 1788, Jay MSS. 



SECRETARY FOR FOREIGN AFFAIRS 231 

be not a few who prefer a separation from the 
union to any national government whatever. They 
suggest hints of the importance of this State, of its 
capacity to command terms, of the policy of its 
taking its own time, and fixing its own price, etc. 
They hint that an adjournment may be expedient, 
and that it might be best to see the operation of 
the new government before they receive it. The 
people, however, are gradually coming right, not- 
withstanding the singular pains taken to prevent 
it." ^ It should be remembered, too, that state 
pride had been grievously wounded by the separa- 
tion of Vermont, and was all the more set against 
any further diminution of its power and dignity. 

The Constitution was discussed section by sec- 
tion. The question of representation in the House 
of Representatives at once awoke the interminable 
duel between State Rights and Federalism; and 
Alexander Hamilton, the " Colossus " of the con- 
vention, was opposed by Melancthon Smith, the 
most formidable of the anti-Federalists. The de- 
bate was closed by Jay, who, according to a recent 
writer, " with extreme tact . . . laid stress on the 
point that all sides agreed that a strong, energetic 
government was necessary and practicable." ^ The 
formation of the Senate then became the theme of 
hot discussion for many days, and the anti-Feder- 
alists were still urging a shorter term of office for 
senators, when news reached Poughkeepsie that 

1 To Washington, June, 1788. 

2 J. A. Stevens, Mag. of Am. Hist., July, 1878. 



232 JOHN JAY 

New Hampshire, the ninth State, had ratified, and 
the new government was already a fact. The time 
had come which Jay had anticipated in his Address. 
" Suppose nine States should . . . adopt it, would 
you not in that case be obliged either to separate 
from the Union, or rescind your dissent ? The first 
would not be eligible, nor the latter pleasant." 
The situation was changed on the instant ; it was 
no longer a question of ratification, but merely of 
the terms of ratification. 

The Fourth of July was spent by the delegates 
in a general celebration of the day. " Two tables," 
Jay wrote to his wife, "but in different houses, 
were spread for the convention, the two parties 
mingled at each table, and the toasts (of which 
each had copies) were communicated by the sound 
of drum, and accompanied by the discharge of can- 
non." 1 The next day the anti-Federalists returned 
to their dying struggles. On July 11 Jay moved 
the ratification of the Constitution and the recom- 
mendation of any amendments that should be 
adopted. After four days' discussion Melancthon 
Smith moved that the amendments relating to the 
service of the militia and the laying of direct taxes 
be conditional to ratification. On the 19th other 
amendments were moved on similar terms. At 
length, on the 23d, a test vote was had, imder the 
influence of the news from Virginia ; and an ex- 
pression of " full confidence " that the amendments 
would be adopted was substituted by a majority of 
1 July 5, 1788, Jay MSS. 



SECRETARY FOR FOREIGN AFFAIRS 233 

two for the stipulation of any condition. The reser- 
vation of a right to withdraw from the Union if the 
amendments were not submitted to a general con- 
vention was voted down. Instead thereof Jay, in 
spite of his protest, was directed to prepare and 
transmit to the several state legislatures a letter 
recommending another general convention to con- 
sider the amendments, " a singular proof," says 
Stevens, "of the public confidence in the probity 
and fairness of his judicial mind." ^ Jay and 
Hamilton had to choose between the evils of a call 
for a second convention and a rejection of the 
Constitution by the State, and chose wisely, for 
the call proved nugatory. " I did not, I confess," 
wrote Washington to Jay, "see how it could be 
avoided."^ 

On Saturday, July 26, after forty days of " an 
ordeal torture," to quote the words of a witness, 
by a majority of three votes only, the Constitution 
was ratified. The laurels of the victory were borne 
by Hamilton, but the work of Jay was such that 
Washington wrote from Mount Vernon : " With 
peculiar pleasure I now congratulate you on the 
success of your labors to obtain an unconditional 
ratification." ^ In 1815 John Adams bore similar 
testimony. Writing to James Lloyd about the 
early Federalists, he said : " I forbore to mention 
one of more importance than any of the rest, in- 

1 Mag. of Am. Hist., July, 1878, p. 403. 

2 Writings of Washington, ix. 408. 

8 August 3, 1788, Jay's Jay, ii. 194. 



234 JOHN JAY 

deed of almost as much weight as all the rest. I 
mean Mr. Jay. That gentleman had as much in- 
fluence in the preparatory measures in digesting 
the Constitution, and obtaining its adoption, as 
any man in the nation. His known familiarity 
with Madison and Hamilton, his connection with 
all the members of the old Congress, have given to 
these writings [the 'Federalist'] more considera- 
tion than both the other writers could have given 
them." 1 

1 February 6, 1815, John Adams's Works, x. 115. 



CHAPTER X 
CHIEF JUSTICE OP THE UNITED STATES 

1789-1795 

Jay continued to act as secretary for foreign 
affairs till Jefferson's return from France in the 
spring of 1790, and as such took part in the in- 
auguration of Washington. In forming the new 
government the President showed his regard and 
admiration for Jay by offering him the choice of 
the federal offices. Of the three departments, the 
executive, the legislative, and the judicial, all theo- 
retically of equal dignity, and each equally inde- 
pendent, that of justice seemed at the moment of 
most importance. The violent opposition of the 
anti-Federalists to any strong national government 
foreboded bitter contests over the construction of 
the Constitution ; and the only safeguard was the 
organization of a wise and powerful Supreme Court. 
For almost every other provision of the Constitu- 
tion there was some precedent either in the theory 
or practice of the English Constitution, or in the 
institutions of some colony or province ; but the 
Supreme Court, at least in respect to its original 
jurisdiction, was apparently the unprecedented re- 



236 JOHN JAY 

suit of the requirements of the new system of gov- 
ernment with its complex correlation of national 
and confederate state sovereignties, for its only- 
predecessors were the judiciary committees of the 
Congress under the Confederation, which acted in- 
termittently as courts of admiralty in cases of prize, 
and as boards of arbitration in questions of state 
boundaries. To maintain its theoretical position 
as "the keystone of our political fabric," in the 
words of Washington, the court had to claim the 
dignity and win the popular respect inherited by 
other courts. Its power as interpreter and guar- 
dian of the Constitution, that is to say the conserva- 
tion and perpetuity of the republic as established 
by its founders, depended upon the personal re- 
spectability and wisdom of the members of its 
bench. Such thoughts must have been familiar to 
Jay when, of all the great offices, he chose the 
chief justiceship. The court was created by the 
Judiciary Bill, approved on September 24, which 
provided for the appointment of a chief justice 
and five associate justices, and on the 26th Jay 
was nominated and confirmed by the Senate. " In 
nominating you for the important station which 
you now fill," wrote Washington, " I not only acted 
in conformity with my best judgment, but I trust I 
did a grateful thing to the good citizens of these 
United States." ^ 

During Jay's short tenure of office few causes 
came before the court, and with one exception the 
1 October 5, 1789, Writings of Washington, x. 35. 



CHIEF JUSTICE OF THE UNITED STATES 237 

decisions are preserved only in the brief and dry 
minutes of the clerk. Yet three great facts were 
determined once for all : the dignity of the court 
was vindicated from encroachment by the federal 
executive and legislative departments ; its jurisdic- 
tion was established over the state governments ; 
and, incidentally, Jay announced and determined 
that foreign policy of the United States which has 
been accepted and followed from that day to this. 

On February 1, 1790, in the old Federal Hall in 
New York, Jay and two associate judges met and 
adjourned for lack of a quorum. On February 2 
the court organized, the letters patent appointing 
the several justices were read, and a " cryer " was 
appointed. On the following days a clerk was 
sworn in, seals for the Supreme Court and the Cir- 
cuit Courts were chosen, orders were adopted for 
the admission of attorneys and counselors, and 
many of the first lawyers in the country were ad- 
mitted accordingly, — Elias Boudinot, Egbert Ben- 
son, Fisher Ames, Robert Morris, Edward Living- 
ston. Twice a year, according to law. Circuit 
Courts were held, each by two justices of the Su- 
preme Court and a district judge. Jay's circuit 
included New York and New England, and in New 
York city, April 4, 1790, he delivered his first 
charge as a federal judge to the grand jury. " Let 
it be remembered," he said, " that civil liberty con- 
sists not in a right to every man to do just what he 
pleases ; but it consists in an equal right to all the 
citizens to have, enjoy, and do, in peace, security, 



238 JOHN JAY 

and without molestation, whatever the equal and 
constitutional laws of the country admit to be con- 
sistent with the public good." ^ 

On adjourning the court in New York, Jay con- 
tinued on circuit through New England, holding 
courts in Connecticut April 22, in Massachusetts 
May 4, and in New Hampshire May 20. At the 
time of this first circuit, an eye-witness in Boston 
gives the following account of the personal appear- 
ance of the chief justice : " His height was a little 
less than six feet ; his person rather thin, but well 
formed. His complexion was without color, his 
eyes black [they were really blue] and penetrating, 
his nose aquiline, and his chin pointed. His hair 
came over his forehead, was tied behind, and lightly 
powdered. His dress black. The expression of 
his face was exceedingly amiable. When standing, 
he was a little inclined forward, as is not uncommon 
with students long accustomed to bend over a table. 
His manner was very gentle and unassuming." ^ 
Everywhere, especially in Massachusetts, he was 
received with enthusiasm. Invitations from friends 
poured in on him to stay with them while holding 
court, but with almost supersensitive delicacy he 
decided that it would be more proper to lodge only 
at the public inns.^ 

While at Boston he received a degree of Doctor 
of Laws from Harvard College, an honor he had 

1 Jay's Jay, i. 276. 

2 Sullivan, Letters on Public Characters, p. 59. 

3 Jay's Jay, i. 277. 



CfflEF JUSTICE OF THE UNITED STATES 239 

received also with Adams and Franklin at the 
close of the peace negotiations from the University 
of Dublin. He wrote a little later to his wife : " I 
had two days ago a pleasant ride to Cambridge 
over the new bridge of which you have often heard. 
We extended our excursion to some pretty seats 
not far from the college, and among others Mr. 
Gerry's. On Wednesday next I purpose, on invi- 
tation from Judge Gushing and General Lincoln, 
to visit them. This will take me thirty miles out 
of my way to Portsmouth, but having time enough, 
and my horses in good order, that circumstance is 
not very important. . . . Cold easterly winds seem 
to prevail here ; I think our climate a better one." ^ 
In those days a judge must have needed consid- 
erable physical endurance to ride in two months 
through four States, and must have spent far more 
time in the saddle than on the bench. In the au- 
tumn he again rode the circuit and held courts at 
Boston, Exeter, Providence, Hartford, and Albany. 
In the winter John Adams at Philadelphia begged 
for a visit, in characteristic phrase : " As you are 
a Roman the jus hospitii will not be disputed by 
you." But Jay deferred his visit tiU the February 
term, 1791, when the court removed there with the 
shifting seat of government from New York. Then 
the first case was entered on the docket. Van Sta- 
phorst -y. The State of Maryland, but was discon- 
tinued on agreement by the parties to pay their 
own costs. In August rules of practice were de- 

1 May 6, 1790, Jay MSS, 



240 JOHN JAY 

clared, — substantially the rules of the King's 
Bench and the Court of Chancery in England. 

In April the Circuit Court for the District of 
New York, with Jay presiding, agreed unani- 
mously to a protest against an act of Congress 
providing that applications for invalid pensions 
should be passed on by the judges of the Supreme 
Court in their respective circuits. The protest de- 
clared that Congress could not assign to the judici- 
ary " any duties but such as are properly judicial, 
and to be performed in a judicial manner. That 
the duties assigned to the Circuit Courts by this 
act are not of that description, . . . inasmuch as 
it subjects the decisions of these courts, made pur- 
suant to those duties, first to the consideration and 
suspension of the secretary at war, and then to the 
revision of the legislature ; whereas, by the Con- 
stitution, neither the secretary at war, nor any 
other executive officer, nor even the legislature, 
are authorized to sit as a court of errors on the 
judicial acts or opinions of this court." ^ Accord- 
ingly when the question came before the court on 
a motion for a mandamus in Hayburn's Case, be- 
fore a decision was given, the obnoxious act was 
repealed. Practically the court had declared for 
the first time an act of Congress unconstitutional. 

On February 16, 1792, at a meeting of his 

friends in New York city. Jay was nominated for 

governor in opposition to Clinton, who had held 

that office continuously since June, 1777.^ He 

1 2 Dall. 410 note. " N. T. Journal, February 18, 1792. 



CHIEF JUSTICE OF THE UNITED STATES 241 

accepted the nomination, stipulating, however, that 
he should not be required to take any active part 
in the campaign. " I made it a rule," he wrote to 
a friend, " neither to begin correspondence nor con- 
versation upon the subject." The selection of the 
chief justice as a candidate, and his acceptance, 
the virulence of the election and its fraudulent 
conclusion, need a word of explanation ; more es- 
pecially as those issues were now, for the first time, 
clearly defined, which a few years later were to 
give rise to the Republican party. 

Before the Revolution the parties in the colo- 
nies were practically identical with the Whigs and 
Tories of the mother country, the Whigs or anti- 
prerogative men supporting ever the cause of the 
people against arbitrary or illegal acts of the gov- 
ernor or the council. In the early days of the 
Revolution the ultra Tories were gradually driven 
into the ranks of the enemy, until for a time it 
might be said that all Revolutionary America 
had become Whig ; the name Tory, however, was 
still applied to those who, though opposed to the 
usurpations of George III., were averse to a final 
separation from England. The victorious party 
in a civil war always divides at its close on the 
question of terms to the vanquished, and so far as 
concerned American politics the Revolution may 
be regarded as a civil war. In New York State, 
where the royalists had been the most united and 
the most irreconcilable, public feeling against them 
was intensely vindictive. To the majority of the 



242 JOHN JAY 

people the Revolution meant only the local revolu- 
tion in the State, the guerrilla warfare in "West 
Chester County, the Indian raids on the border, 
the enemy's occupation and abandonment of the 
city ; so the return of peace found them excited 
by personal resentment, and eager for revenge. 
There were few men, even in public life, who had 
had experience outside of the State, and it was 
chiefly those who had such experience, like Jay 
and Hamilton, who could see the necessity of con- 
ciliation, the impolicy of alienating any citizens, 
however mistaken, who had honestly preserved 
their neutrality. Jay would exclude from the 
country only those royalists who had shown them- 
selves perfidious or cruel, and was indignant at the 
violent acts of confiscation and disfranchisement 
which the gust of popular hatred swept through 
the legislature during the years immediately pre- 
ceding and succeeding the treaty of peace. The 
infamous Trespass Act, through the fearless ora- 
tory of Hamilton, was declared unconstitutional, 
and one by one the other proscriptive acts were 
repealed in spite of the constant opposition of 
Clinton, the war governor of the State, that burly, 
magnetic man, of north of Ireland stock, endowed 
with all the stubborn prejudices of his race. Pro- 
scription of the royalists sprang from unreflecting, 
local, personal feelings ; it was forbidden also by 
the treaty of peace and the recommendation of 
Congress. So the Whigs were already dividing 
along lines of national and local politics. 



CHIEF JUSTICE OF THE UNITED STATES 243 

The survival of pre-Revolutionary provincial 
modes of thought and feeling was, perhaps, the 
basis of anti-Federalism ; and as the majority of 
the people were farmers, slow to change, little 
moved by argument, the State was naturally anti- 
Federalist, save so far as it was affected by the 
excitement and necessities of the Eevolution, which 
made Federalists of the more thoughtful leaders of 
the war. In 1783 Clinton and his friends brought 
about the repeal of the act granting the duties of 
the port of New York to the United States, to be 
collected by federal officers ; and they secured the 
appointment of the collectors by the State, an im- 
practicable change which soon had to be amended. 
Before, then, the Federalist party, so called, ex- 
isted, Clinton and his adherents were virtually anti- 
Federalists. In the Constitutional Convention two 
of the three New York delegates left the conven- 
tion in accordance with the well-known views of 
the legislature, which desired only the amendment 
of the Articles of Confederation ; and in the Con- 
stitutional Convention of the State, Clinton threw 
his great influence steadily against ratification, 
until longer resistance became impossible. To the 
generality of the people, for many years to come, 
no government seemed legal but the state govern- 
ment, and the Congress at Philadelphia loomed as 
remote and foreign as a Parliament at London. 
Of Congress no slander was too gross to be be-' 
lieved, and the cabinet of Washington was repre- 
sented as "forging the chains of monarchy and 



244 JOHN JAY 

aristocracy." The assumption of state debts by 
the national government was a clever device for 
enslaving the people ; the brilliant financiering of 
Hamilton was part of the same dishonest scheme. 
The year 1791 was summarized as "the reign of 
speculators. A free gift of sixty per cent, added 
to the capitals of speculators by means of the 
Bank, and other governmental douceurs. Banks, 
bubbles, tontines, lotteries, monopolies, usury, gam- 
bling, swindling, etc., abound ; poverty in the coun- 
try ; luxury in the capitals ; corruption and usur- 
pation in the national councils." ^ Year after year 
was Clinton reelected without serious opposition ; 
and in 1789 the Federalists dared attempt no more 
than to divide the overwhelming majority by nom- 
inating Robert Yates, of the state Supreme Court, 
himself an anti-Federalist. Such was the state of 
affairs in New York when John Jay was nominated 
for the governorship. 

From regard to popular prejudice the campaign 
was conducted by the Federalists with extraordi- 
nary caution. Apparently no appeal was made to 
general principles ; they simply argued that Clin- 
ton had been governor long enough, and urged the 
value of Jay's services to the State and the nation. 
/ It was admitted even by the governor's friends 
that he had used the patronage of his of&ce " to 
strengthen his own popularity and to advance his 
own views in regard to questions of public pol- 
icy." 2^- The Federalists, therefore, considered them- 
/ 

1 N. Y. Journal, July 4, 1792. 

- Jenkins, Governors o/N. Y, p. 61. 



CHIEF JUSTICE OF THE UNITED STATES 245 

selves civil service reformers, but somewhat curi- 
ously contended that rotation in office was in itself 
desirable, as the best preservative of republicanism 
and the safeguard against undue influence ; ^ while 
the anti-Federalists, unlike their modern represent- 
atives, sensibly replied that change of officers with- 
out cause was an absurdity.^ Clinton, according 
to the Federalists, had been an admirable "mili- 
tary governor," but his special services had termi- 
nated with the war. Troubles with the Iroquois 
are threatening, was the reply, how can a man of 
peace deal with them ? ^ 

/As election day drew near, it appeared that the 
industry of manufacturing what we call " campaign 
lies " was almost as active, and certainly as ingen- 
ious, then as now. The State owned vast tracts of 
public land towards the Canadian borders, and 
Clinton was accused of conniving at the sale of a 
single estate of nearly four million acres to Alex- 
ander McComb, with a view to connecting it with 
British territory. Against Jay stories were cir- 
culated equally absurd. New York was then a 
slaveholding State, and it was asserted that Jay 
proposed " to rob every Dutchman " of his slaves. 
Jay was, however, even on the question of slavery, 
no extremist. As a statesman he considered eman- 
cipation, like other political questions, a matter 
depending on practical rather than abstract con- 
siderations. " Every man, of every color and de- 

1 N. Y. Journal, March 7, 1792; Ibid., March 24. 

2 Ibid., February 29, 1792. 
8 Ibid., March 7, 1792. 



246 JOHN JAY 

scription," he wrote to a friend, "has a natural 
right to freedom, and I shall ever acknowledge 
myself to be an advocate for the manumission of 
slaves in such a way as may be consistent with the 
justice due to them, with the justice due to their 
masters, and with the regard due to the actual 
state of society. These considerations unite in 
convincing me that the abolition of slavery must 
necessarily be gradual." ^ His enemies then pub- 
lished a statement that in conversation with cer- 
tain gentlemen Jay had said : " There ought to be 
in America but two sorts of people, the one very 
rich and the other very poor." The gentlemen 
mentioned at once signed a card to the public con- 
tradicting the ridiculous slander ; ^ but so long- 
lived was it, and so credulous were the people of 
that day, that it was repeated and had to be again 
contradicted with affidavits three years later. To 
the mortification of Jay, his old friend. Chancellor 
Livingston, and others of his wife's relatives, now 
deserted the President's party, by reason of some 
fancied neglect, as it was believed, in the matter 
of appointments ; and the chancellor's enthusiastic 
zeal of a new convert was skiUfully fanned by the 
publication of satirical letters attributed to Jay. 
This insinuation was also met by a prompt denial 
signed by Jay himself. ^ 

To the people. Jay and Clinton were sedulously 
represented as the aristocrat and the republican ; 

1 February 27, 1792, Jay's Jay, i. 285. 

2 April 5, 1792, Jay MSS. 3 jay'g Jay, i. 286. 



CHIEF JUSTICE OF THE UNITED STATES 247 

Jay as accustomed to draw a large salary in the 
" luxury of splendid courts," and now supported 
by the "powerful landed interest" of the Van 
Rensselaers, while Clinton was the hardy son of 
toil. It was said that Jay was the nominee of the 
President and the secretary of the treasury, and 
that all the influence of the government was for 
him. " Do you not tremble for the independ- 
ence of the State ? " ^ " We are rich," thundered 
" Cato," " our coffers full, while those of the 
Union are empty, and by no means equal to the 
exigencies of government. I should not wonder 
at a proposition from the secretary of the treasury 
to take on loan at ten per cent, from this State all 
the unappropriated money in it. . . . Could Mr. 
Jay discountenance this, as coming from the gov- 
ernment, which has been his friend and support ? " ^ 
State love was appealed to by " Cincinnatus," even 
from another side, to keep Jay where he was : " It 
is of some importance to have a citizen of your 
State at the head of the judiciary of the United 
States." 3 

So the battle raged, but at the election it was 
soon discovered that the votes for Jay outnum- 
bered those for Clinton. But a returning board, 
a joint committee of the legislature of whom the 
majority were Clintonians, foimd the returns from 
three counties, which notoriously had gone Feder- 
alist, were technically defective. The law provided 

1 N. T. Journal, March 24, 1792. 

8 Ibid., March 31, 1792. s jjt^.^ ^prii ig^ 1792. 



248 JOHN JAY 

that the votes of each town should be transmitted 
in sealed boxes by the respective county sheriffs to 
the secretary of state. But the ballots of Otsego 
County had been delivered by the ex-sheriff, whose 
term had just expired, the new sheriff not having 
qualified. Those of Tioga were given by the sheriff 
to a special deputy, who was taken sick on the road 
and sent them on by his clerk ; and those of Clin- 
ton were delivered by the sheriff to one who had 
no written deputation, but who returned them per- 
sonally.i Aaron Burr and Eufus King were asked 
for legal opinions; King, the Federalist, advised 
that the returns from all three counties were legal ; 
Burr, the Republican, held that all were illegal, — 
a conclusion which he reached, as he said, " not 
without sensible regret, as no suspicion was enter- 
tained of the fairness of these elections." ^ It was 
generally believed that the Federalist majority in 
Otsego County alone was sufficient to elect Jay ; 
and on general principles, as the ballots had been 
delivered to the ex-sheriff by the inspectors before 
the arrival of his successor,^ and there was no 
other acting sheriff in the county on election day, 
his transfer of the ballots was undoubtedly legal ; 
otherwise the people were disfranchised absolutely 
without any fault of their own.* The Constitution 

1 Davis, Life of Burr, i. 333. 

2 Ibid. i. 347. 

8 N. Y. Journal, July 18, 1792, qnoting Smith's own statements 
in the Albany Gazette ; N. Y. Journal, December 5, testimony of 
the clerk of Otsego. 

* Hammond, Pol. Hist, of N. Y. i. 62-67. 



CHIEF JUSTICE OF THE UNITED STATES 249 

provided for the annual appointment of sheriffs, 
but as the Council of Appointment met only when 
summoned by the governor, it was customary for 
the sheriffs to hold over till the qualification of 
their successors. Seventy such instances had oc- 
curred since 1777 ; in one case an ex-sheriff had 
executed a criminal,^ and their returns of votes as 
such had never before been seriously questioned. 
When it is remembered that the inspectors were 
required to deliver the ballots to the sheriff without 
delay, the unsoundness of Burr's decision becomes 
still more clear. Van Kensselaer, a member of the 
council, was said to have urged the governor early 
in the year to appoint a new sheriff in Otsego, and 
the governor had replied that it was unnecessary 
to do so, since the old one could hold over. There- 
fore, however " Brutus " and " Julius Caesar " 
might argue it out in the newspapers, the decision 
of the council was a foregone conclusion, even 
before June 12, when they announced by a party 
vote of seven to four the election of Clinton, and 
ordered the ballots to be burnt, though the custom 
had always been to preserve them in the office of 
the secretary of state.^ 

Jay, meanwhile, was leisurely riding his circuit, 
apparently indifferent to politics. " I learn," he 
writes to his wife from New Haven, " that we shall 
have much business to do here, there being about 
forty actions. . . . On the road I met Mr. Soder- 

1 Jay's Jay, i. 288. 

2 N. Y. Journal, August 22, 1792. 



250 JOHN JAY 

sheim. . . . He told me Mr. McComb [the unpop- 
ular grantee of the McComb patent] was in gaol, 
and that certain others had ceased to be rich. . . . 
Mrs. McComb must be greatly distressed. Your 
friendly attentions to her would be grateful and 
proper." ^ Once Mrs. Jay made some remark about 
his having no further use for his official robe as 
chief justice, — that robe presumably with salmon- 
colored facings whose origin has excited so much 
speculation, perhaps a robe he had received as 
Doctor of Laws, and had adapted to the new pur- 
pose. " My robe," he replied, " may become use- 
less or it may not. I am resigned to either event. 
He who governs all makes no mistakes, and a firm 
belief of this would save us from many." ^ On 
the day of the final decision, " People are running 
in continually," wrote Mrs. Jay, "to vent their 
vexation. Poor Jacob Morris looks quite discon- 
solate. King says he thinks Clinton as lawfully 
governor of Connecticut as of New York, but he 
knows of no redress." ^ " The reflection that the 
majority of electors were for me is a pleasing one," 
was Jay's philosophical answer from Hartford; 
" that injustice has taken place does not surprise 
me, and I hope will not affect you very sensibly. 
The intelligence found me perfectly prepared for 
it. ... A few years more wiU put us all in the 
dust, and it will then be of more importance to me 

1 To Mrs. Jay, April 24, 1792, Jay MSS. 

2 Jay's Jay, i. 287. 

8 From Mrs. Jay, June 12, 1792, Jay MSS. 



CHIEF JUSTICE OF THE UNITED STATES 251 

to have governed myself, than to have governed 
the State." ^ 

From Vermont the chief justice returned home 
by way of Albany. As he drew near Lansing- 
burgh, on June 30, the people met him and es- 
corted him to the village, where a committee de- 
livered an address, declaring that : " Though abuse 
of power may for a time deprive you and the citi- 
zens of their right, we trust the sacred flame of 
liberty is not so far extinguished in the bosoms 
of Americans as tamely to submit to the shackles 
of slavery, without at least a struggle to shake 
them off." 2 Public dinners, addresses, and salvos 
of artillery were repeated at Albany and Hudson ; 
and eight miles from New York a body of citizens 
had assembled and escorted him to his house, and 
another address followed from a committee of the 
Sons of Liberty. His answer was eminently con- 
ciliatory and conservative : " They who do what 
they have a right to do, give no just cause of 
offense ; and, therefore, every consideration of pro- 
priety forbids that difference of opinion respecting 
candidates should suspend or interrupt the mutual 
good-humor and benevolence which harmonize so- 
ciety, and soften the asperities of human life." ^ 
As the people of Otsego were threatening to march 
to New York, and there was some actual appre- 
hension of " an appeal to arms," * the intensity of 
public feeling may be imagined. The significance 

1 Jay's Jay, i. 289. 2 n^id, j. 200, 201. 

3 Ibid. i. 293. * N. Y. Journal, July 13, 1792. 



252 JOHN JAY 

of these events as regards Jay is, that for the 
time the political outrage united the Federalists 
and the extreme anti-Federalists, who, before all 
things, were lovers of liberty; and so made his 
renomination and election sure, in spite of his 
opinions. On July 14 the anniversary of the de- 
struction of the Bastille was celebrated by the 
Republicans " with nearly the same ardor and sin- 
cerity throughout the United States as the 4th." ^ 
On that day at a large dinner in New York city 
Jay gave the toast : " May the people always re- 
spect themselves, and remember what they owe 
to posterity ; " and after he retired the company 
drank : " John Jay, governor by the voice of the 
people." Also among the toasts at Mechanics' 
HaU, on the Fourth of July, were these two, in 
curious juxtaposition : " The French Revolution," 
and " The Governor (of right) of the State of New 
York." 2 

In the United States Supreme Court the ques- 
tion of the conflicting sovereignties of the States 
and the nation was gradually brought to an issue. 
Several suits were brought by individual States 
against citizens of other States, and by individual 
citizens against States, but the great question of 
the suability of a State remained unargued till 
the case of Chisolm, Executor, v. The State of 
Georgia came to a hearing.^ The State refused 
to appear except to demur to the jurisdiction of 

1 N. Y. Journal, July 21, 1792. 

2 Ibid., July 14, 1792. ^ 2 Dall. p. 415. 



CHIEF JUSTICE OF THE UNITED STATES 253 

the court. The chief justice in his opinion, which 
was in writing, began by asserting that the States 
had never possessed an independent sovereignty. 
Before the Revolution " all the people of the coun- 
try were subjects to the king of Great Britain. . . . 
They were in strict sense fellow subjects, and in a 
variety of respects one people." In the establish- 
ment of the Constitution " we see the people act- 
ing as sovereigns of the whole country ; and, in 
the language of sovereignty, establishing a consti- 
tution by which it was their will that the state 
governments should be bound, and to which the 
state constitutions should be made to conform. . . . 
The sovereignty of the nation is in the people of 
the nation, and the residuary sovereignty of each 
State is in the people of each State." As one 
State may sue another State, " suability and state 
sovereignty are not incompatible." Cases " in 
which a State shall be a party " are by the Con- 
stitution within the jurisdiction of the Supreme 
Court. "Did it mean here party plaintiff? If 
that only were meant, it would have been easy to 
find words to express it." The court accordingly 
gave judgment against the State by default. The 
legislature of Georgia passed acts condemning to 
death any one who should attempt to serve the 
process of execution. But judgment was never 
executed, for the next year an amendment to the 
Constitution was passed to counteract the effect 
of the decision. Jay's logic, however, remained 
uncontroverted. It established the court as the 



254 JOHN JAY 

supreme interpreter of the Constitution, and his 
words were long cited as disproving the extreme 
theory of state rights. The importance of the 
decision is shown by the fact that it was thought 
necessary to argue that it was of no authority " to 
determine the political duty of the citizen in a 
crisis like that of 1861." ^ It laid down the lines, 
indeed, that Marshall followed, in his famous series 
of federal decisions, culminating in McCulloch v. 
Maryland : " The government proceeds directly 
from the people, is ordained and established in the 
name of the people." ^ " After this clear and 
authoritative declaration of national supremacy," 
said Judge Cooley, " the power of a court to sum- 
mon a State before it, at the suit of an individual, 
might be taken away by the amendment of the 
Constitution — as was in fact done — without im- 
pairing the general symmetry of the federal struc- 
ture, or inflicting upon it any irremediable injury. 
. . . The Union could scarcely have had a valuable 
existence had it been judicially determined that 
powers of sovereignty were exclusively in the States 
or in the people of the States severally. . . . 
The doctrine of an indissoluble Union, though not 
in terms declared, is nevertheless in its elements at 
least contained in the decision. The qualified sov- 
ereignty, national and State, the subordination of 
State to nation, the position of the citizen as at 
once a necessary component part of the federal 

1 Hurd, Theory of our National Existence, p. 131. 

2 4 Wheat, p. 316. 



CHIEF JUSTICE OF THE UNITED STATES 255 

and of the state system, are all exhibited. It must 
logically follow that a nation, as a sovereignty, is 
possessed of all those powers of independent action 
and seK-protection, which the successors of Jay 
subsequently demonstrated were by implication con- 
ferred upon it." ^ 

In the spring of 1793, before Chief Justice Jay 
and Judges Griffin and Iredell, at Richmond, Pat- 
rick Henry made his famous argument in the 
second trial of Ware's Executors v. Hylton, on the 
question whether British creditors could recover 
against Virginia debtors by virtue of the treaty of 
peace, in spite of an act of Virginia to the contrary. 
Jay told Iredell that Patrick Henry, as he stood 
there an old decrepit man, was " the greatest of ora- 
tors." As he spoke " the color began to come and 
go in the face of the chief justice, while Iredell sat 
with his mouth and eyes stretched open, in perfect 
wonder." ^ At the final decision Jay was not pre- 
sent, though doubtless he would have concurred 
in the judgment of the court in favor of the cred- 
itors. 

The news of the capture of the Bastille was 
printed in the papers on the same day as Wash- 
ington's cabinet nominations, and by this time the 
eyes of all the world were fixed on the rapidly cul- 
minating scenes of the French Revolution. The 
anti-Federalists, or Republicans, who, in their op- 

^ Constitutional History of the United States, as seen in the De- 
velopment of American Law, 1889, p. 49. 
2 Historical Mag., November, 1873, p. 275. 



256 JOHN JAY 

position to a centralized government, had fallen 
back on doctrines of state rights, and finally on the 
new theories of the rights of man, were in full 
sympathy with the Paris mob, and were forming 
throughout the land Democratic clubs, on the 
model of the notorious Jacobin Club. The report 
that a minister was on his way from France made 
it necessary for the government to define its posi- 
tion towards the new republic. "The king has 
been decapitated," wrote Hamilton to Jay. " Out 
of this will arise a regent, acknowledged and sup- 
ported by the powers of Europe almost universally ; 
in capacity to act, and who may himseK send an 
ambassador to the United States. Should we in 
such case receive both? If we receive one from 
the republic and refuse the other, shall we stand 
on ground perfectly neutral?" And the same day 
he wrote again : " Would not a proclamation pro- 
hibiting our citizens from taking commissions on 
either side be proper ? Would it not be well that 
it should include a declaration of neutrality f If 
you think the measure prudent, could you draft such 
a thing as you would deem proper ? I wish much 
you would." ^ Two days later Jay answered the 
question about receiving a minister concisely but 
in conformity with modern international usage : " I 
would not receive any minister from a regent until 
he was regent de facto ; " and he inclosed a draft of 
a proclamation. " It is hastily drawn," he added ; 
" it says nothing about treaties ; it speaks of neu- 
» April 19, 1793, Jay's Jay, i. 298, 300. 



CHIEF JUSTICE OF THE UNITED STATES 257 

trality, but avoids the expression, because in this 
coimtry often associated with others." ^ This was, 
apparently, the first draft of the still more concise 
proclamation issued by Washington on April 22, 
which also avoided using the word "neutrality." 
" The murmurs and disgust which this measure 
occasioned," it has been well said, "evinced its 
necessity and wisdom." The reason for not using 
the word " neutrality " was, probably, because at 
that time it was popularly taken to mean "non- 
intercourse," and so would have caused confusion.^ 
" The duty and interest of the United States," 
ran the President's proclamation, " require that 
they should, with sincerity and good faith, adopt 
and pursue a conduct friendly and impartial to- 
wards the belligerent powers. I have, therefore, 
thought fit ... to exhort and warn the citizens of 
the United States carefully to avoid all acts and 
proceedings whatsoever, which may in any manner 
tend to contravene such disposition." Very neces- 
sary was such a declaration when the friends of 
France were doing everything that private citizens 
could do to involve the country in the European 
war, in which they could see nothing but a coali- 
tion of despotisms against republicanism. Events 
moved rapidly. Genet, the French minister, ar- 
rived at Charleston on April 8, and at once began 
to compromise the neutrality of the country by dis- 
tributing naval and military commissions, fitting 

1 To Alex. Hamilton, April 11, 1793, Jay's Jay, i. 300. 

2 Historical Mag., February, 1871, p. 129, and Ap. p. 137 n. 



258 JOHN JAY 

out privateers in American ports, and organizing 
courts of admiralty under the various French con- 
suls for the condemnation of prizes. " The minister 
of France," said a Philadelphia newspaper, sup- 
posed to be the organ of Jefferson, " the minister 
of France, I hope, will act with firmness and spirit. 
The people are his friends, or the friends of France, 
and he will have nothing to apprehend, for, as 
yet^ the people are the sovereign of the United 
States." ^ Emboldened by his enthusiastic recep- 
tion, the minister used language of the gravest in- 
discretion; especially on one occasion, when the 
government, relying on his word, tried in vain to 
prevent the sailing of a privateer. Jay and Ruf us 
King then thought it necessary to publish their tes- 
timony to his words : " A report having reached 
this city [New York] from Philadelphia, that Mr. 
Genet, the French minister, had said he would 
appeal to the people from certain decisions of the 
President, we were asked on our return from that 
place whether he had made such a declaration ; we 
answered that he had^ and we also mentioned it 
to others, authorizing them to say that we had so 
informed them."^ This statement provoked the 
unmeasured indignation of the Republican press : 
" Is the President," asked one paper, " a consecrated 
character, that an appeal from his decisions must 
be considered criminal ? Or are the people in such 
a state of degradation, that to speak of consulting 
them is an offense as great as if America groaned 

1 Jay's Jay, i. 303, 2 ibid, \, 304. 



CHIEF JUSTICE OF THE UNITED STATES 259 

under a dominion equally tyrannical with the old 
monarchy of France ? " ^ 

Washington's proclamation would have been a 
dead letter, signifying nothing, unless its princi- 
ples had been sustained by the courts. It fell to 
Jay to place it upon a legal basis, and to establish 
what Sir Henry Maine recently asserted to be the 
distinctively American doctrine : that " interna- 
tional has precedence both of federal and of mu- 
nicipal law, unless in the exceptional case where 
federal law has deliberately departed from it." ^ 
In his charge to the grand jury at Richmond, Vir- 
ginia, May 22, 1793, the chief justice said : " You 
will recollect that the laws of nations make part 
of the laws of this and of every other civilized 
nation. They consist of those rules for regulating 
the conduct of nations towards each other, which, 
resulting from right reason, receive their obliga- 
tions from that principle and from general assent 
and practice. To this head also belong those rules 
or laws which, by agreement, become established 
between nations. . . . We are now a nation, and 
it equally becomes us to perform our duties as to 
assert our rights ; " and he concluded accordingly 
that " the United States are in a state of neutral- 
ity relative to all the powers at war ; . . . that, 
therefore, they who commit, aid, or abet hostili- 
ties against those powers, or either of them, offend 
against the laws of the United States, and ought 
to be punished." 

1 Jay's Jay, i. 305. ^ Maine, International Law, p. 37. 



260 JOHN JAY 

In accordance with this charge, one Gideon 
Henfield, a citizen of the United States, who had 
served as officer on a French privateer which 
brought a British vessel as a prize into Philadel- 
phia, was indicted, though no jury could be found 
to convict him. The importance of the charge, 
however, lay in the fact that, independent of stat- 
utes, and in the face of violent popular prejudice, 
it declared violations of neutrality to be criminally 
indictable at common law, and that, with singular 
prescience, it defined the duties of neutrals in al- 
most the exact words of the rules which, by desire 
of the United States, were afterwards included in 
the treaty of Washington. The proclamation of 
the President was implicitly held to be simply 
declaratory of existing law. This position was 
sound, though criminal jurisdiction was assumed 
by the Supreme Court at that time rather of ne- 
cessity than of right ; but it was a position which 
no one would dare to take without a confident 
knowledge of legal principles. International law 
is part of the common law ; ^ by international law 
neutrality is presumed to exist till a tacit or public 
declaration of war ; and a neutral, except so far 
as stipulated by treaty, must grant aid, neither by 
arms nor men, to a belligerent.^ By the treaty 
with France no such stipulation is expressed, as 
even Jefferson notified Morris at Paris.^ Finally, 

^ Kent, Commentaries, 13th ed. i. 1, note a. 

* Levi, International Law, p. 294. 

8 August 6, 1793, Waite, State Papers, i. 140. 



CHIEF JUSTICE OF THE UNITED STATES 261 

in becoming a nation, the United States became 
amenable " to that system of rules which reason, 
morality, and custom had established among the 
civilised nations of Europe as their public law ; " ^ 
these words of Chancellor Kent, which open his 
"Commentaries," are little else than a condensa- 
tion of Jay's charge at Richmond. To a certain 
extent, the policy then laid down for the United 
States was a departure from that adopted in the 
treaties made during the Revolution, which con- 
templated an active neutrality, so to speak, on 
behalf of the fayored nation when at war. Such 
a policy, if continued, might, indeed must, have 
involved the country in European quarrels with 
which it had no concern. In the civil war the 
Alabama taught us the practical distinction be- 
tween active and real neutrality ; and the wisdom 
of Washington and Jay was never more clearly 
vindicated than by their most virulent critic of re- 
cent days, who declared that " France was the first 
victim, and Poland, and Ireland, and Hungary fol- 
lowed, in the sad procession." ^ The charge was 
printed by the government for distribution abroad, 
in order to explain its position ; while the Demo- 
crats, with at least unconscious misapprehension, 
demanded loudly, " What law had been offended, 
and under what was the indictment supported ? . . . 
Were they to be punished for violating a proclama- 
tion which had not been published when the offense 

1 Kent, Commentaries, i. 1. 

2 Dawson, Hist. Mag., February, 1871, p. 139. 



262 JOHN JAY 

was committed, if,, indeed, it could be termed an 
offense to engage with France, combating for lib- 
erty against the combined despots of Europe ? " ^ 

Similarly, when the case of the sloop Betsey 
came up for decision, in which the owners, Swed- 
ish neutrals, claimed restitution in the District 
Court after the vessel had been condemned by a 
French prize court, the chief justice held, " that 
no foreign power can of right institute, or erect, 
any court of judicature of any kind within the 
jurisdiction of the United States, but such only as 
may be ... in pursuance of treaties. It is there- 
fore decreed and adjudged that the admiralty ju- 
risdiction, which has been exercised in the United 
States by the consuls of France, not being so war- 
ranted, is not of right." ^ 

This April session was the last which Jay at- 
tended as chief justice, though it was not till 1795 
that he resigned. The causes brought before him 
were, perhaps, not of a character fully to test his 
professional ability, though Wharton speaks of his 
" soimd, wary, experienced judgment," ^ and Story 
describes him as " equally distinguished as a Revo- 
lutionary statesman and a general jurist." * So far, 
however, as circumstances permitted, no opportu- 
nity was lost of establishing the authority of the 
court, and promoting the welfare of the country. 

1 Marshall, Life of Washington, ii. 273, 274, 

2 Glass et al. v. The Sloop Betsey et al. 3 Dall. pp. 6-15. 

3 Wharton, State Trials, p. 88. 

* Story, Comm. on the Constitution, i. § 216. 



CHAPTER XI 

SPECIAL ENVOY TO GREAT BRITAIN 
1794-1795 

The daily increasing " love-frenzy for France," 
and the intemperate language of the Democratic 
press, naturally emphasized in England that reac- 
tion against America which set in with the treaty 
of peace. On the other hand, the retention of the 
frontier posts in violation of that treaty was a 
thorn in the side of the young republic. In the 
course of the war England had adopted, by suc- 
cessive Orders in Council, a policy ruinous to the 
commerce of neutral nations, especially of the 
United States. In the admiralty courts of the va- 
rious British West India islands hundreds of ships 
from New England were seized and condemned 
for carrying French produce or bearing cargoes of 
provisions chartered to French ports. The New 
England fishermen and shipowners were vociferous 
for war, and the Democratic clubs denounced every 
British insult and celebrated every French victory. 
On March 26, 1794, an embargo against British 
ships was proclaimed for thirty days, and then 
extended for thirty days longer. The day after 



y 



264 JOHN JAY 

the embargo was laid, Dayton of New Jersey 
moved in Congi-ess to sequestrate all moneys due 
to British creditors, and apply it towards indemni- 
fying shipowners for losses incurred through the 
Orders in Council ; and on April 21 the Republi- 
cans moved a resolution to suspend all commercial 
intercourse with Great Britain till the western 
posts should be given up, and indemnity be paid 
for injuries to American commerce in violation of 
the rights of neutrals. 

The passage of such an act meant war ; and for 
war the United States was never more unprepared. 
The resources of the people had been taxed in recov- 
ering from the ruin brought by the Revolution and 
in organizing a government. In spite of Jay's re- 
commendation the Confederation had left the coun- 
try without a navy, and there was no army. The 
veterans of the Revolution in their eastern homes, 
or in the near western colonies had been pauper- 
ized by the depreciation of the currency, and were 
amons: the discontented rioters who rebelled under 
Shays in Massachusetts, and had threatened Con- 
gress at Philadelphia. Jealousy of military influ- 
ence had prevented their organization into anything 
like the nucleus of an army, and jealousy of federal 
power had retarded the formation of a new one. 
The imion of the States was too new to bear the 
strain of a war which to half the people would be 
repugnant, and the burden of which would faU 
chiefly on a few States. One policy only was open 
to a wise government, and that was the policy of 



SPECIAL ENVOY TO GAEAT BRITAIN 265 

Washington : " Peace," he declared, " ought to be 
pursued with unremitted zeal before the last re- 
source, which has so often been the scourge of 
nations, and cannot fail to check the advancing 
prosperity of the United States, is contemplated." ^ 
Peace could be secured only by immediate nego- 
tiation and at least a temporary settlement of the 
causes of mutual irritation, and for such a task the 
ministers at London and Washington were incom- 
petent or unsuited. Mr. Pinckney, the American 
minister at London, was, according to John Adams, 
a man of prejudices and strongly pro-Gallican ; 
while Hammond, the English minister at Washing- 
ton, had little prudence or moderation.^ In this 
crisis Washington decided to send to England a 
special envoy. Hamilton was his first choice, but 
Hamilton had excited bitter enmities ; Monroe 
warned the President against his nomination so 
soon as it was suggested, and it would doubtless 
have failed of confirmation by the Senate.^ Hamil- 
ton then himself proposed the name of Jay : " Of 
the persons whom you would deem free from any 
constitutional objections, Mr. Jay is the only man 
in whose qualifications for success there would be 
thorough confidence, and him alone it would be ad- 
visable to send." * Two days later Jay was nomi- 

^ Writings of Washington, x. 404. 

2 To Christopher Gore, March 5, 1794, Works of Fisher Ames, 
i. 137. 

8 Madison's Works, ii. 11. 

* To Washington, April 14, 1794, Hamilton's Works, iv. 536. 



266 JOHN JAY 

nated, and after three days of violent debate was 
confirmed by the Senate. " You cannot imagine," 
wrote Adams to his wife the day of the final vote, 
" what horror some persons are in, lest peace should 
continue. The prospect of peace throws them into 
distress. . . . The opposition to Mr. Jay has been 
quickened by motives which always influence every- 
thing in an elective government. ... If Jay should 
succeed, it wiU recommend him to the choice of the 
people for president, as soon as a vacancy shall 
happen. This will weaken the hopes of the South- 
ern States for Jefferson. This I believe to be the 
secret motive of the opposition to him, though 
other things were alleged as ostensible reasons ; 
such as his monarchical principles, his indifference 
about the navigation of the Mississippi, his attach- 
ment to England, his aversion to France, none of 
which are well founded, and his holding the office 
of chief justice." ^ 

This month Jay was holding court in Phila- 
delphia. On April 9 he wrote to his wife : " Yes- 
terday I dined with the President. The question 
of war or peace seems to be as much in suspense 
here as in New York when I left you."^ The 
next day he wrote again ; " Peace or war appears 
to me a question which cannot be solved. Unless 
things should take a turn in the mean time, I 
think it will be best on my return to push our 
affairs at Bedford briskly [where he proposed 

1 To Mrs. Adams, April 19, 1794, Adams's Letters, ii. 156. 

2 Jay MSS. 



SPECIAL ENVOY TO GREAT BRITAIN 267 

building a country-house]. There is much irrita- 
tion and agitation in this town and in Congress. 
Great Britain has acted unwisely and unjustly, 
and there is some danger of our acting intemper- 
ately." ^ When he heard that he might be sent to 
England, the question presented itself to Jay's 
conscientious mind merely as one of duty. He 
was not for a moment misled as to the effect which 
his mission, however successful diplomatically, was 
almost sure to have on his reputation. The learned 
Dr. Carnahan, who became president of Princeton 
College in 1823, in his lectures on moral philoso- 
phy used to quote a conversation between Jay and 
some friends at this time that was told him by an 
ear-witness, as a striking instance of courageous 
patriotism: "Before the appointment was made, 
the subject was spoken of in the presence of Jay, 
and Jay remarked that such were the prejudices of 
the American people, that no man could form a 
treaty with Great Britain, however advantageous 
it might be to the country, who would not by his 
agency render himself so unpopular and odious as 
to blast all hope of political preferment. It was 
suggested to Mr. Jay that he was the person to 
whom this odious office was likely to be offered. 
' Well,' replied Mr. Jay, ' if Washington shall 
think fit to call me to perform this service, I will 
go and perform it to the best of my abilities, fore- 
seeing as I do the consequences to my personal 
popularity. The good of my country I believe 
1 Jay MSS. 



268 JOHN JAY 

demands the sacrifice, and I am ready to make 
it.' " ^ In a similar spirit he wrote to his wife 
April 15 : " The object is so interesting to our 
country, and the combination of circumstances 
such, that I find myself in a dilemma between 
personal and public considerations." And again : 
" Nothing can be more distant from every wish on 
my own account. . . . This is not of my seeking ; 
on the contrary I regard it as a measure not to be 
desired, but to be submitted to." "^ His acceptance 
he explained a few days later : " No appointment 
ever operated more unpleasantly upon me ; but the 
public considerations which were urged, and the 
manner in which it was pressed, strongly impressed 
me with a conviction that to refuse it would be to 
desert my duty for the sake of my ease and domes- 
tic concerns and comforts." ^ 

On May 12 Jay set sail in the ship Ohio, with 
his son Peter Augustus, and with John Trimibull 
as secretary. On June 8 he landed at Falmouth. 
At the moment of his departure the New York 
Society, in an address to the people, began to fan 
the embers of that partisan virulence which was to 
flame into frenzy on his return. " We most firmly 
believe," it ran, " that he who is an enemy to the 
French Revolution cannot be a firm republican, 

^ Extract from Lecture Vll., communicated from the original 
MSS. by the kindness of Mr. McDonald, a grandson of Dr. Car- 
nahan. 

2 Jay's Jay, i. 310. 

3 To Mrs. Jay, April 19, Jay's Jay, i. 311. 



SPECIAL ENVOY TO GREAT BRITAIN 269 

and, therefore, though he may be a good citizen in 
other respects, ought not to be intrusted with the 
guidance of any part of the machine of govern- 
ment." 

" The passage across the Atlantic was pleasant," 
wrote Trumbull in his " Autobiography," " and on 
the 1st of June we must have been near, almost 
within hearing, of the decisive naval battle which 
was fought on that day, between the British and 
the French fleet ; for on our arrival at Falmouth, a 
few days after, we found there a sloop of war just 
arrived with dispatches from Lord Howe, . . . and 
we met the note of triimiph at Bath, on our way 
to London." ^ There, soon after his arrival. Jay 
was introduced to the cabinet ministers at dinner 
at Lord GrenviUe's, and a few days later he dined 
with Lord Chancellor Loughborough and Pitt.^ 

The complaints to be adjusted between the two 
countries were numerous and complicated. Great 
Britain, on the one hand, had retained the western 
military posts in violation of the treaty of peace, 
and had made no compensation for the negro slaves 
carried away by her officers; on the other hand, 
several of the States had prevented the collection 
of debts to English merchants contracted before 
the Revolution. The boundaries of the United 
States on the west and northeast were unsettled. 
Great Britain, finally, complained of damage to her 
commerce by French privateers fitted out in Amer- 

1 Autobiography of John Trumbull, p. 174. 

2 To Alex. Hamilton, July 11, Jay's Jay, ii. 228. 



270 JOHN JAY 

ican ports ; while the United States complained of 
similar damage through irregular captures by Brit- 
ish cruisers. To avoid interminable discussion and 
hasten an accommodation, Jay, at his first meet- 
ing with Lord Grenville, the secretary for foreign 
affairs, suggested that they should at first avoid 
written communications, and merely meet and con- 
verse informally, "until there should appear a 
probability of coming to some amicable mutual 
understanding ; " that they should then exchange 
preliminary papers, which still should not be bind- 
ing, and that in all this they should not employ 
secretaries or copyists, in order to escape the in- 
fluence of public opinion and national feeling as 
much as possible. They should always bear in 
mind, said Jay, " that this was not a trial of diplo- 
matic fencing, but a solemn question of peace or 
war between two peoples, in whose veins flowed 
the blood of a common ancestry, and on whose con- 
tinued good understanding might perhaps depend 
the future freedom and happiness of the human 
race." On this broad statesmanlike basis was the 
negotiation conducted, and the secretaries had a 
holiday till the treaty was almost ready for sign- 
ing.i "I will endeavor to accommodate rather 
than dispute," were Jay's words to Hamilton.^ 

On August 5 Jay was able to write to Washing- 
ton : " Our prospects become more and more pro- 
mising as we advance in the business. ... A 

^ Autobiography of John Trumbull, pp. 176, 177. 
2 July 11, 1794, Jay's Jay, u. 228. 



SPECIAL ENVOY TO GREAT BRITAIN 271 

treaty of commerce is on the carpet. . . . The king 
observed to me the other day, ' Well, sir, I imagine 
you begin to see that your mission will probably 
be successful.' ' I am happy, may it please your 
majesty, to find that you entertain that idea.' 
* Well, but don't you perceive that it is like to be 
so?' 'There are some recent circumstances (the 
answer to my representation, etc.), which induce 
me to flatter myself that it will be so.' He nodded 
with a smile, signifying that it was to those cir- 
cumstances that he alluded." ^ " If I should be 
able to conclude the business on admissible terms," 
Jay wrote to Hamilton, the next month, " I shall 
do it and risque consequences, rather than, by the 
delay of waiting for . . . opinions and instructions, 
hazard a change in the disposition of this court." ^ 
On November 19 the treaty was signed : " Fur- 
ther concessions on the part of Great Britain," 
wrote Jay to Oliver Ellsworth on the same day, 
" cannot in my opinion be obtained. . . . The min- 
ister flatters himself that this treaty will be very 
acceptable to our country, and that some of the 
articles in it will be received as unequivocal proofs 
of good-will. We have industriously united our 
efforts to remove difficulties, and few men would 
have persevered in such a dry, perplexing busi- 
ness, with so much patience and temper as he has 
done." ^ A copy of the treaty was at once dis- 

1 Jay's Jay, ii. 220. 

2 To Alex. Hamilton, September 11, 1794, Jay MSS. 
* Jay's Jay, ii. 235. 



272 JOHN JAY 

patched to Congress by an American sea captain 
then in London, David Blaney; but wind and 
wave delayed its arrival till the session was over. 
" The winds blue continually from the westward," 
is Blaney's own account of the voyage, " from the 
time the ship left England until we came on the 
course of America. ... I took a small flask of 
rum " [an item, by the way, that the secretary of 
the treasury wished afterwards to have explained], 
" to encourage the sailors to keep a better watch, 
and pay attention to the ship, and promised them 
all small rewards if the ship arrived at such a 
time ; but we could not alter the contrary winds. 
... I mentioned to you . . . the French cruser 
boarding us, and making mention of the treaty 
signed by you, he serch'd every part of the ship ; 
but such care was taken of the treaty it was impos- 
sible for it to have been discovered. ... I landed 
at Norfolk at ten o'clock at night, hired horses, 
and made all the despatch I could to reach Phila- 
delphia ; my first horse founder'd after getting to 
Richmond, which I did in one day and part the 
night. ... In seven days from the time I landed 
in Norfolk I delivered the despatches to E. Ran- 
dolph, Esq. ; when I reach'd Philadelphia my hand 
as well as feet was fros'd. . . . Unfortunately the 
Senate had rose as well as Congress three days be- 
fore I reach'd the Capital." ^ 

The main points that Jay had been instructed 
to gain were compensation for negroes, surrender 

1 From David Blaney, September 20, 1796, Jay MSS. 



SPECIAL ENVOY TO GREAT BRITAIN 273 

of the posts, and compensation for spoliations ; in 
addition, a commercial treaty was desired. When 
secretary for foreign affairs, Jay had argued that 
the negroes, some three thousand in number, who, 
at the time of the evacuation, were within the 
British lines, relying on proclamations that offered 
freedom, and who followed the troops to England, 
came within that clause of the treaty of peace 
which provided that the army should be withdrawn 
without " carrying away any negroes or other pro- 
perty." ^ Lord Grenville, however, insisted upon 
refusing any compensation. Once within the Brit- 
ish lines, he said, slaves were free for good and all, 
and could no longer be regarded as property for 
which compensation could be claimed ; and these 
reasons must have appealed strongly to Jay's anti- 
slavery convictions. From any point of view the 
matter was too insignificant to wreck the treaty 
upon it, and Jay waived the claim. 

As to the western posts, it was agreed that they 
should be surrendered by June 12, 1796. But 
compensation for the detention was denied on the 
ground that it was due to the breach of the treaty 
by the United States in permitting the States to 
prevent the recovery of British debts. 

Where the collection of such hona fide debts 
incurred before the Revolution had been barred, 
or their value impaired by "legal impediments" 
since the peace, it was provided that "full and 
complete compensation " should be made by the 

^ Secret Journals, iv. 185-287. 



274 JOHN JAY 

United States, to be ascertained by a board of 
five commissioners to meet, first, at Philadelphia. 
Similarly, the British government agreed to make 
"full and complete compensation" to American 
citizens for losses sustained "by reason of irregular 
or illegal captures or condemnations under color 
of authority or commissions from his majesty," 
wherever " adequate compensation " cannot be had 
at law, the damages to be ascertained by a board 
of five commissioners to sit at London. These 
claims should be decided " according to the merits 
of the several cases, and to justice, equity, and the 
law of nations." The same commissioners were 
also to pass on claims of British subjects for losses 
by captures within the jurisdiction of the United 
States, which agreed to make compensation accord- 
ingly. 

It must have been a delicate matter to obtain 
such a concession from Great Britain, for it prac- 
tically amounted to an admission that the Orders 
in Council were in violation of neutrality, irregu- 
lar and illegal, though the language was skillfully 
adapted to avoid wounding English susceptibilities. 
Under this clause American merchants received 
110,345,000. Jay wrote to Pickering : " Perfect 
justice to all parties is the object of both the 
articles (vi., vii.), and the commissioners are em- 
powered to do it, in terms as explicit and compre- 
prehensive as the English language affords." ^ 

The disputed questions of boundaries, arising 

1 October 14, 1795, Jay MSS. 



SPECIAL ENVOY TO GREAT BRITAIN 275 

from the construction of the treaty of peace, were 
referred to joint commissioners : properly enough, 
as the confusion was due to ignorance of the geo- 
graphy of the Northwest. 

British and American citizens holding lands at 
the time respectively in the United States and in 
any of the possessions of Great Britain were se- 
cured in their rights ; a clause much objected to in 
America, but which was obviously just. A still 
more important provision followed, a novelty in 
international diplomacy, and a distinct advance in 
civilization : that war between the two countries 
should never be made the pretext for confiscation 
of debts or annulment of contracts between indi- 
viduals. In the war of 1812 the United States 
happened for the moment to be the creditor nation, 
and the millions which this provision saved to her 
citizens it would be difficult to estimate. 

" The commercial part of the treaty," wrote Jay 
to Washington, " may be terminated at the expira- 
tion of two years after the war, and in the mean 
time a state of things more auspicious to negotia- 
tion will probably arise, especially if the next 
session of Congress should not interpose fresh ob- 
stacles." 1 It was the commercial articles which 
excited the most intense hostility in America, and 
one article was very properly rejected. But it was 
apparently conveniently forgotten at the time, that 
there was then no treaty of commerce at all with 
England ; that England, according to the economi- 
1 September 3, 1795, Jay MSS. 



276 JOHN JAY 

cal notions of the day, had little to gain and much 
to lose by any such treaty ; and that what privileges 
she did allow were, as Lord Grenville may well 
have thought, practically gratuitous. As it was, 
reciprocal freedom of commerce was established 
between the United States on the one side and 
British North America and Great Britain on the 
other ; American vessels were admitted to trade 
between American ports and the East Indies, with 
certain restrictions as to exportation in time of 
war; and American vessels of not over seventy 
tons' burden were admitted to carry to the British 
West Indies goods of American growth or man- 
ufacture, and to export to American ports only 
West Indian products, on condition that " the 
United States will prohibit and restrain the carry- 
ing away any molasses, sugar, coffee, cocoa, or cot- 
ton, in American vessels, either from his majesty's 
islands or the United States to any part of the 
world except the United States, reasonable sea- 
stores excepted." It was this latter clause that 
was so bitterly condemned. The explanation of it, 
however, is clear. The particular articles men- 
tioned were supposed to be peculiarly the products 
of the West Indies, and it was unsuspected by Jay 
that cotton was to be one of the great staples of 
export from this country. Such lack of foresight 
was not surprising, since, only the previous year, 
1794, when an American ship entered Liverpool 
with eight bags of cotton fibre as part of her cargo, 
it was confiscated as an unlawful importation, " on 



SPECIAL ENVOY TO GREAT BRITAIN 277 

the assumption that so large a quantity could not 
have been the produce of the United States." ^ 
Moreover, it seems that it was but a few years 
earlier that the cultivation of cotton had been 
attempted at all, for " a member from South Car- 
olina observed, in the House of Representatives 
in '89, that the people of the Southern States in- 
tended to cultivate cotton, and ' if good seed could 
be procured, he believed they might succeed.' " ^ 

The remaining articles of the treaty dealt with 
the conduct to be observed by either nation when 
the other was at war. It was agreed that when a 
neutral vessel was captured on suspicion of carry- 
ing enemy's goods, it should be tried speedily at 
the nearest port, and only the enemy's goods 
should be confiscated. " Contraband " was de- 
fined. Privateers were required to give security 
not to injure the commerce of the neutral. Acts 
of reprisal for alleged injuries should not be per- 
mitted until complaint made and compensation 
refused. Mutual efforts should be made to abolish 
piracy. Against this final series of articles the 
two chief objections urged were, that they implied 
that the flag does not cover enemy's goods, and 
that provisions might become contraband. But 
both these positions were part of the international 
law of the time. As to enemy's goods, the law as 
stated was : " Les marchandizes neutres chargees 
par I'enemie sont libres ; mais le pavillion neutre 

1 The First Century of the Republic, New York, 1876, p. 163. 

2 Diplomacy of the U. S. p. 220. 



278 JOHN JAY 

ne neutralize pas la marchandize enemie." ^ And 
as to provisions, the clause in the treaty that con- 
cerned them was, that whenever any doubtful arti- 
cles, " which had become contraband under the 
existing law of nations," should be seized, the neu- 
tral owners should receive full compensation. The 
principle then maintained by England and denied 
by the United States, that in certain cases — for 
instance, of imperfect blockade — provisions be- 
came contraband, has since been generally aban- 
doned even by England. But as late as the recent 
Franco-Chinese war the French government de- 
clared rice, conveyed by neutral vessels to North 
China ports, to be contraband of war ; and when 
provisions are to be used in warlike operations, 
they are unquestionably contraband.^ It was 
finally provided that nothing in the treaty should 
be so construed as to conflict with existing treaties 
with other states. It was, therefore, a false politi- 
cal cry to assert, as was asserted a thousand times, 
that the treaty was in violation of the treaties with 
France. 

It is true that Jay failed to obtain an article 
against impressments, which then and the next 
year ^ he urged on Lord Grenville as essential to 
preserve friendship between the two countries. 
But even the war of 1812 failed to secure a 

1 SchoeU, iv. 15. 

2 J. R. Soley, " The EfEect on American Commerce of an Anglo- 
Continental War," Scribner^s Magazine, November, 1889. 

3 To Lord Grenville, May 1, 1796, Jay MSS. 



SPECIAL ENVOY TO GREAT BRITAIN 279 

formal renunciation of that evil. That negotia- 
tion should have succeeded in effecting what war 
failed to achieve, was scarcely to be expected. 

To unprejudiced eyes after the lapse of a hun- 
dred years, considering the mutual exasperation of 
the two peoples, the pride of England in her suc- 
cesses in the war with France, the weakness and 
division of the United States, the treaty seems a 
very fair one. Certainly one far less favorable to 
America would have been infinitely preferable to a 
war, and would probably in the course of time 
have been accepted as being so. The commercial 
advantages were not very considerable, but they at 
least served as " an entering wedge," to quote Jay's 
expression, and they were 'pro tanto a clear gain 
to America. Some such thoughts may have been 
in Lord Sheffield's mind when, at the breaking 
out of the war of 1812, he remarked : " We have 
now a complete opportunity of getting rid of that 
most impolitic treaty of 1794, when Lord Gren- 
viUe was so perfectly duped by Jay." ^ And it is 
significantly admitted by the latest biographer of 
the Democratic hero, Andrew Jackson, that " Jay's 
treaty was a masterpiece of diplomacy, considering 
the time and the circumstances of this country." ^ 

The truth of the whole matter was probably ex- 
pressed as well as ever by Lord Grenville to Jay, 
in 1796 : " It is a great satisfaction to me, when, 

1 To Mr. Abbott, November 6, 1812, Correspondence of Lord 
Colchester, ii. 409. 
^ Sumner, Andrew Jackson, p. 12. 



280 JOHN JAY 

in the course of so many unpleasant discussions as 
a public man must necessarily be engaged in, he is 
able to look back upon any of them with as much 
pleasure as I derived from that which procured me 
the advantage of friendship and intercourse with a 
man valuable on every account. ... I, on my part, 
should have thought that I very iU consulted the 
interests of my country, if I had been desirous of 
terminating the points in discussion between us on 
any other footing than that of mutual justice and 
reciprocal advantage ; nor do I conceive that any 
just objection can be stated to the great work which 
we jointly accomplished, except on the part of those 
who believe the interests of Great Britain and the 
United States to be in contradiction with each 
other, or who wish to make them so." ^ 

In England Jay made many friends : the Bishop 
of London, whose parents were American born, 
Henry Dundas, Sir William Scott, Sir Henry 
Newenham, Edmund Burke, to whom he after- 
wards sent cuttings of apple-trees. Lord Chancellor 
Loughborough, who invited him to attend the trial 
of the pyx, and sent him a brace of grouse, Sii 
John Sinclair, the president of the Board of Agri- 
culture, who invited him to look at his flock of 
sheep and various mechanical inventions, of which 
he wrote a long account to Judge Hobart, Lord 
and Lady Mornington, Jeremy Bentham, Dugald 
Stewart, and William Wilberforce, with each of 
whom he kept up an occasional but most friendly 

1 From Lord GrenviUe, March 17, 1796, Jay's Jay, ii. 267, 268. 



SPECIAL ENVOY TO GREAT BRITAIN 281 

correspondence for the rest of his life. In Wil- 
berforce's diary is the entry : " Dined at Hamp- 
stead to meet Jay (the American envoy), his son, 
etc., — quite American — sensible. I fear there is 
little spirit of religion in America; something of 
French, tinctured with more than English simpli- 
city of manners ; very pleasing, well-informed men. 
American Abolition of Foreign Slave Trade." ^ 

On May 28 Jay arrived in New York. As dur- 
ing the period of his mission he had continued 
to hold the position of chief justice, he refused 
any compensation except for actual expenses. The 
treaty was not published till July 2, the day after 
Jay's inauguration as governor, and then only by 
a breach of senatorial etiquette ; yet some mention 
must be made here of the exciting scenes which 
followed. 

Even before its contents were known, letters, 
signed " Franklin," appeared abusing the treaty ; 
and in Philadelphia an effigy of Jay was placed in 
the pillory, and finally taken down, guillotined, the 
clothes fired, and the body blown up.^ It was clear, 
then, that it was not this particular treaty, but any 
treaty at all with Great Britain, that excited the 
wrath of the Republicans. On July 4 toasts in- 
sulting Jay, or making odious puns on his name, 
were the fashion. Two days after a copy of the 
treaty reached Boston, a mass meeting was called, 
though there had been no time to consider it, and 

^ Life of William Wilberforce, ii. 57. 

2 McMaster, Hist, of the People of U. S. ii. 213. 



282 JOHN JAY 

condemnatory resolutions were passed. In New 
York, on the 18th, similar action was had ; Hamil- 
ton tried to make himself heard, but was stopped 
by a volley of stones ; and the treaty and a picture 
of Jay were burned on the Bowery. One effigy 
represented Jay holding a pair of scales, with the 
treaty on one side and a bag of gold on the other, 
while from his mouth proceeded this label, " Come 
up to my price, and I will sell you my country." 
James Savage, once president of the Massachusetts 
Historical Society, told his grandson that he re- 
membered seeing these words chalked in large 
white letters around the inclosure of Mr. Robert 
Treat Paine : — 

" Damn John Jay ! Damn every one that won't 
damn John Jay! I Damn every one that won't 
put lights in his windows and sit up all night damn- 
ing John Jay ! ! ! " 1 

On June 24 the treaty was ratified by the Senate, 
with the exception of the article about the West 
India trade. On August 15 it was signed, with 
the same exception, by Washington. The follow- 
ing spring, March 3, 1796, the treaty was pro- 
claimed the supreme law of the land ; yet even then 
the Republicans, claiming that the House had an 
equal share with the Senate in treaty-making, tried 
to defeat it by preventing the passage of laws 
necessary to carry it into effect ; and the honor of 
the nation was saved only by the casting vote of 

1 John Jay, Second Letter on Dawson's Federalist, New York, 
1864, p. 19. 



SPECIAL ENVOY TO GREAT BRITAIN 283 

Muhlenberg, the chairman, in committee of the 
whole, though he was a member of the Democratic 
Club, and in the House only by a majority of three. 
That the essays of Hamilton as " CamUlus," and 
the famous speech of Fisher Ames, contributed as 
much as anything to this happy issue, is too well 
known to need more than mention of the fact. 
One may at least, however, reecho Ames's prayer : 
" Lord, send us peace in our day, that the passions 
of Europe may not inflame the sense of Amer- 
ica!"! 

Throughout the storm of vituperation Jay him- 
self remained calm and philosophical. " As to my 
negotiation and the treaty," he wrote to Judge 
Gushing, " I left this country well convinced that 
it would not receive anti-Federal approbation ; be- 
sides, I had read the history of Greece, and was 
apprised of the politics and proceedings of more 
recent date." ^ " Calumny," he said again, " is sel- 
dom durable, it will in time yield to truth." ^ He 
had at least done his duty, though by so doing 
he very possibly lost the presidency of the United 
States.* 

^ Works of Fisher Ames, i. 196. 

2 To Judge Gushing, July 11, 1795, Jay MSS. 

3 To John Patterson, November 17, 1795, Jay MSS. 

* HamUton, " Camillus," July 22, 1795, Works, vii. 175, 



CHAPTER XII 

GOVERNOR OF NEW YORK 

1795-1801 

Before his return from England, and long be- 
fore any details of the treaty were published, Jay 
was nominated for governor of New York by a 
caucus of the Federalists in the legislature, and in 
due time was elected. "It had been so decreed 
from the beginning," ^ wrote Egbert Benson ; it 
had at least been so decreed ever since the infa- 
mous counting out in 1792. " God only knows," 
was Jay's reply, " whether my removal from the 
bench ^ to my present station will conduce to my 
comfort or not. The die is cast, and nothing re- 
mains for me to consider but how to fulfill in the 
best manner the duties incumbent on me, without 
any regard to personal consequences." ^ 

One of his first acts as governor showed his con- 
servative adherence to legal customs, even when he 
had full discretion. To a request from Governor 
Huntington of Connecticut for the extradition of 

1 June 12, 1795, Jay MSS. 

2 Jay resigned the chief justiceship of the United States. 

3 To Egbert Benson, June 27, 1795, Jay MSS. 



GOVERNOR OF NEW YORK 285 

two criminals, in a case where urgency seemed to 
justify the omission of some of the usual papers, 
Jay answered : " I do not think myself at liberty to 
dispense with the precise formalities prescribed." ^ 
In the autumn the yellow fever broke out in 
New York. During the French and English war 
the price of necessaries had risen enormously, out 
of all proportion to the rise in wages ; house rent 
had almost doubled ; the poorer people, mainly 
Irish immigrants, lived in damp cellars, and the 
system of sewerage also was most imperfect, if 
there could be said to be any system at all. In 
such conditions everything favored the spread and 
continuance of epidemic diseases. In the autumn 
of 1791 there was an outbreak of yellow fever 
near Peck Slip, among the boating population, 
while on the west side intermittent fever was com- 
mon. Occasional cases of the fever occurred dur- 
ing the next few years, till in August and Septem- 
ber, 1795, there was a real epidemic. Tar was 
burned in the streets. The students left Columbia 
College. A member of the health committee died 
of the fever, and one of Jay's intimate friends, 
Mr. Wentworth, also died of it after two days' 
sickness. On August 14 Jay issued a proclama- 
tion forbidding any vessel from the West Indies 
to approach nearer the city than Governor's Island 
till she had a health certificate from the health 
officer of the port. The alarm spread to other 
cities, and Governor Mifflin of Pennsylvania, on 

1 To Governor Huntington, July, 1795, Jay MSS. 



286 JOHN JAY 

August 31, prohibited " all intercourse " between 
Philadelphia and New York for a month ; and in- 
tercourse was not resumed till October 21. The 
governor of Virginia also ordered all vessels from 
New York to perform quarantine. New York 
merchants were greatly inconvenienced, and Jay, 
after consulting the Medical Society, the Health 
Committee, and the mayor, forwarded their reports 
to Governor Mifflin, urging that the disease was 
strictly localized and under control, and that such 
violent preventive measures were imnecessary ; but 
the memory of the fever in Philadelphia in 1793 
was too vivid for his words to have much effect.^ 
The French consul and his fellow citizens invited 
Jay to a " republican entertainment " on Septem- 
ber 22, but he declined, saying : " While general 
anxiety and alarm" pervaded his native city, it 
would not "be in his power to command that 
degree of hilarity which . becomes such convivial 
scenes." ^ Throughout the whole period of danger 
he stayed in the city, as a matter of duty; and 
refused an invitation to visit for safety a friend 
in New Jersey, with the explanation : " Our situa- 
tion affords us considerable security against the 
disorder, and I think it best that my family should 
remain here, lest their removal should increase the 
alarm which is already too great. If, indeed, the 
danger should become very imminent, it would 

1 Davis, A Brief Account of the Epidemical Fever which lately 
■prevailed in the city of New York, New York, 1795. 

2 To the consul, September 19, 1795, Jay MSS. 



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GOVERNOR OF NEW YORK 287 

doubtless be right for Mrs. Jay and the children 
to leave me, and go into the country." ^ With the 
return of cold weather the plague ceased, and Jay 
issued a proclamation appointing Thursday, No- 
vember 26, a day for " his fellow citizens through- 
out the State to unite in public thanksgiving to 
that Being through whose Providence the ravages 
of the yellow fever had been stayed." This was 
the first Thanksgiving Day in New York, though 
in other States, on exceptional occasions, days for 
special thanksgiving had been similarly appointed. 
But the innovation was thought by Jay's political 
enemies to be a stretch of executive power, and 
few acts of his were more bitterly censured than 
this innocent one of gratitude and reverence. The 
fever of 1795 is now chiefly noteworthy historically 
as the immediate cause of the introduction of an 
underground system of sewerage.^ 

On January 6, 1796, the legislature convened 
with a Federalist majority in both houses. It 
was then customary for the governor to open the 
session by a speech which was answered by an 
address. In his speech Jay stated that he was 
determined " to regard all his fellow citizens with 
an equal eye, and to cherish and advance merit 
wherever found ; " he recommended that provision 
be made for the defense of the State in ease of 
war; that the chancellor and the judges of the 
Supreme Court should receive pensions on their 

1 To John Blanchard, October 3, 1795, Jay MSS. 

2 Schouler, Hist, of U. S. i. 238. 



288 JOHN JAY 

superannuation ; that a penitentiary be established 
for the employment and reformation of criminals ; 
and that some plan of internal improvements be 
adopted for facilitating travel through the State; 
he also requested a settlement of the doubts that 
had arisen as to whether the governor had, under 
the Constitution, the exclusive right of nomination 
in the Council of Appointment. The legislature 
returned a most amiable answer : " The evidence," 
they said, "of ability, integrity, and patriotism 
which have been invariably afforded by your con- 
duct in the discharge of the variety of arduous 
and important trusts, authorize us to anticipate an 
administration conducive to the welfare of your 
constituents." The word " invariably," which 
Hammond terms an " instance of legislative syco- 
phancy," ^ was inserted by the Senate, by a vote 
of eleven to six, on motion of Ambrose Spencer, 
the future chief justice, who was so soon to be- 
come a Republican. 

No practical result immediately followed the 
governor's suggestions ; and a bill to abolish sla- 
very, introduced by an intimate friend of his, was 
defeated by the casting vote of the chairman in 
committee of the whole. In the spring of 1796 
Jay thought fit to publish his views on the French 
Revolution, in the form of a letter to a friend, 
R. G. Harper, who had defended him with rather 
undiscriminating zeal, asserting that he always 
had expressed " the utmost pleasure in the French 
1 Hammond, Pol. Hist. ofN. Y. p. 97. 



GOVERNOR OF NEW YORK 289 

Revolution." ^ Many politicians would be only 
too glad to have their unpopular opinions dis- 
creetly explained away or suppressed; but such 
was not Jay's feeling. He had from early life, 
he said, expressed " strong dislike for the former 
arbitrary government of France ; " he rejoiced in 
the revolution " which put a period to it," " the 
one which limited the power of the king, and re- 
stored liberty to the people." " The successors of 
that memorable assembly produced another revo- 
lution. They abolished the constitutional govern- 
ment which had just been established, and brought 
the king to the scaffold." That revolution did not 
give him pleasure, marked as it was by " atrocities 
very injurious to the cause of liberty, and offensive 
to liberty and morality." Yet, as its overthrow 
by the combined powers would be " an interfer- 
ence not to be submitted to," he wished success to 
the revolution so far as it had for its object the 
formation of a constitution adapted to the people 
of France, and " not the disorganizing and man- 
aging of other states, which ought neither to be 
attempted nor permitted." This temperate letter 
was violently attacked by " An Enemy of Oppres- 
sion," 2 by " Publius," in a series of articles,^ and 
finally by " Common Sense," the pseudonym of 
Thomas Paine.* Paine's argument was limited to 

1 January 19, 1796 ; N. Y. Journal, February 26, 1796. 

2 N. Y. Journal, March 8, 1796. 

8 Ibid., March 29, April 1, 5, 1796. 
* Ibid., April 15, 1796. 



290 JOHN JAY 

asserting that, if John Jay had had his way, Amer- 
ica would never have secured independence, and 
that Jay once said that the senators should have 
been appointed for life. " These are the disguised 
traitors," including Washington and Adams, " that 
call themselves Federalists." ^ Jay, however, was 
a revolutionist as true as Paine was, but infinitely 
wiser. As he wrote to Vaughan : " Liberty and 
reformation may make men mad, and madness of 
any kind is no blessing. I nevertheless think 
that there may be a time for change, as well as for 
other things ; all that I contend for is, that they 
be done soberly, by sober and discreet men, and 
in due manner, measure, and proportion. It may 
be said that this cannot always be the case. It 
is true, and we can only regret it. We must take 
men and things as they are, and act accordingly ; 
that is, circumspectly." ^ 

The governor incurred still further odium by 
refusing to order the flags to be hoisted on Gov- 
ernor's Island and the Battery on the anniversary 
of the Tammany Society ; the reason he gave was, 
that " if such a compliment be paid to the Tam- 
many, it ought not to be refused to any other of 
the numerous societies in this city and State." ^ 

This year, according to Jay's suggestion, a peni- 
tentiary was built in New York, on the model of 
the one of which Philadelphia was at this time so 

1 N. Y. Journal, October 21, 1796. 

2 To William Vanghan, May 26, 1796, Jay MSS. 

3 Letter of May 11, 1796, Jay MSS. 



GOVERNOR OF NEW YORK 291 

proud. He also advised tBe purchase of Bedloe's 
Island for a lazaretto. At Ms suggestion, also, 
Governor Clinton's recommendation of a revision 
of the penal code was revived, and the number of 
offenses punishable by death was greatly dimin- 
ished. His strictness, however, in exercising the 
right of pardon was illustrated by his refusal of a 
request from Governor Wolcott of Connecticut to 
intervene in behalf of a young gentleman of good 
family, convicted of forgery : " Justice . . . can- 
not look with more favorable eye on those who be- 
come criminal in spite of a good education and of 
good examples than of those other offenders who 
from infancy have lived destitute of those advan- 
tages." ^ 

The seat of government was now changed to 
Albany, where the legislature held its first session 
January 2, 1798. No provision was made for the 
governor's residence, so Jay lived in lodgings, and 
was not joined by Mrs. Jay till the following year. 
Again a bill to abolish slavery was introduced, but 
was lost in the Senate. A characteristic anecdote 
of Jay at this time is given by Hammond. When 
the Council of Appointment voted on the nomina- 
tion of a successor to the secretary of state, who 
died in office. Jay's nominations were rejected time 
after time by a Doctor White and other friends 
of Major Hale of Albany. At last the governor 
reluctantly nominated Hale, who was immediately 
confirmed. " The governor soon became convinced 

1 To Governor Wolcott, October 20, 1797, Jay MSS. 



292 JOHN JAY 

that his opposition to the appointment was caused 
by erroneous impressions, and when so convinced 
he lost no time in communicating to Doctor White 
and Major Hale his conviction that he was well 
satisfied that he was wrong, and that the friends 
of Major Hale were right." ^ 

In April, 1798, Jay was renominated and re- 
elected by the large majority of 2380 votes, about 
one twelfth of all the votes cast, over the Republi- 
can candidate. Chancellor Livingston ; a personal 
triumph, as the Republicans made great gains in 
the legislature. Soon the news of the insolent 
treatment of the American envoys by the French 
government, and the famous X, Y, Z letters, ex- 
cited general resentment among the people. War 
with France was thought to be imminent. In 
June committees of citizens of New York peti- 
tioned the governor to summon a special session 
of the legislature for the sake of passing measures 
for the better defense of the city and the port. 
The mayor and council cooperated with the citi- 
zens' committees in raising money for defense. 
Jay accordingly by proclamation called an extraor- 
dinary session of the legislature to meet at Albany 
in August, giving as his reasons the fear of a war 
with France and the necessity of raising funds and 
making preparations for defense. " At this place," 
wrote Peter A. Jay from New York, " the stream 
of public opinion continues to run with increasing 
rapidity in our favor. Several insults lately offered 
1 Hammond, Po^. Hist, of N. F.pp. 112, 113. 



GOVERNOR OF NEW YORK 293 

to the Cockade,^ and the song of ' Hail Columbia,' 
contributed to accelerate it. A few evenings ago 
I was unluckily one of a company who received 
much abuse on account of the latter." ^ The legis- 
lature, however, was still Federalist, and unani- 
mously voted an address to the President pledging 
the support of the State in his endeavors to main- 
tain the rights and honor of the nation. Money 
was also appropriated for the erection of fortifica- 
tions and the purchase of arms at the discretion 
of the governor. 

The extra session adjourned till January 2, 1799. 
During this session, in April, emancipation was at 
last enacted. It was provided that all children 
born of slave parents after the ensuing 4th of July 
should be free, subject to apprenticeship, in the 
case of males tiU the age of twenty-eight, in the 
case of females till the age of twenty-five, and 
the exportation of slaves was forbidden. By this 
process of gradual emancipation there was avoided 
that question of compensation which had been 
the secret of the failure of earlier bills. At that 
time the number of slaves was only 22,000, small 
in proportion to the total population of nearly a 
million.^ So the change was effected peacefully 
and without excitement. Jay himself was a slave- 
holder in a certain sense. " I have three male and 

1 The Federalists had adopted a black cockade as a distinctive 
badge. 

2 From Peter A. Jay, August 1, 1798. 

3 Roberts, " New York," Am. Comm. Series, iL 483, 484. 



294 JOHN JAY 

three female slaves," he wrote in a return of his 
property to the Albany assessors, November 8, 
1798 ; " five of them are with me in this city, and 
one of them is in the city of New York. I pur- 
chase slaves and manumit them at proper ages, 
and when their faithful services shall have afforded 
a reasonable retribution." ^ Perhaps the govern- 
or's practice in this respect may have suggested the 
practical manner of emancipation. 

Though the legislature was still Federalist, and 
remained so even after the April elections, there 
were a number of members, elected as Federalists, 
who acted in all except personal and minor matters 
with the Republicans.^ Accordingly amendments 
to the Constitution, proposed by the legislature of 
Massachusetts, increasing the disability of aliens, 
were rejected in spite of the governor's favor. Also 
the House passed a Republican resolution, which 
was rejected by the Senate, for dividing the State 
into districts for the election, by the people, of 
presidential electors. 

In the electoral college this year Jay received 
nine votes for the presidency of the United States, 
viz. : those of New Jersey and Delaware, five out 
of Connecticut's nine votes, and one from Rhode 
Island. 

■In his message to the legislature, January, 1800, 
the governor delivered "a short but graceful" 
eulo^ on Washington, who, to the sorrow of the 

1 Jay MSS. 

2 Hammond, Pol. Hist. o/N. Y. u. 123. 



GOVERNOR OF NEW YORK 295 

country and the " irreparable loss " of the Federal- 
ists as a party, had died in December. He recom- 
mended further provision for the public schools, 
and various amendents of the laws. In March the 
Republicans renewed the attempt to secure a dis- 
tricting of the State, but without success, the Fed- 
eralists declaring that such an act would be uncon- 
stitutional, and that it was essential that the State 
should act as a body corporate in the choice of 
presidential electors. 

At the spring elections, contrary to general ex- 
pectation, through the able political management 
of Burr, the Republicans triumphed throughout 
the State, wresting New York city from the Feder- 
alists, and returning a majority of twenty-eight to 
the House, while the Senate was Federalist by only 
the small -majority of eight. As it was admitted 
that the next election for president would turn on 
the vote of New York, and New York would cer- 
tainly return Republican electors if they were 
chosen by the legislature in joint session, as was 
then the law, it was now the interest of the Feder- 
alists to advocate their election by the people in 
districts. Accordingly, disregarding the previous 
record of his party and their assertion of the imcon- 
stitutionality of the measure, Hamilton, on May 7, 
wrote to Governor Jay urging him to call an extra 
session of the legislature to pass such an act before 
the expiration of the legislative year on July 1st. 
Philip Schuyler wrote to the same effect, saying 
that Marshall was of the same opinion : " Your 



296 JOHN JAY 

friends will justify it," he continued, " as the only 
means to save a nation from more disasters, which 
it must and probably will experience from the mis- 
rule of a man who has given such strong evidence 
that he was opposed to the salutary measures of 
those who have been heretofore at the helm, and 
who is in fact pervaded with the mad French phi- 
losophy." 1 These words well expressed the fears 
and frenzy of the Federalists. As a party, they 
had created a nation out of a confederation, and, in 
the spirit of latter-day Republicans who felt that 
they had saved the coimtry from dismemberment, 
they were convinced that on their continuance in 
power depended the conservation and prosperity of 
the State. A party which tacitly or openly holds 
such a belief will naturally justify any measure to 
secure itself in power by the final appeal to national 
self-preservation ; but such a party in control of the 
government is a menace to popular liberty, and in 
any healthy state of public opinion is doomed to 
swift defeat, and, perhaps, as happened in this 
case, to extinction. Jay, though as " stalwart " a 
Federalist as any, nevertheless did not believe that 
a good end ever justified bad means ; and he con- 
tented himself with simply indorsing on Hamilton's 
letter the significant words: "Proposing a mea- 
sure for party purposes which I think it would not 
become me to adopt." 

On the convening of the new legislature in No- 
vember the governor, in his speech, deprecated the 

1 Jay MSS. 




t 





GOVERNOR OF NEW YORK 297 

danger of undue poKtical excitement, and urged the 
suppression of partisan inflammatory feeling. He 
also recommended the calling of a convention to 
restrict the number of senators and assemblymen. 
His appeal, however, was in vain; and for the 
remainder of his term he was harassed by the par- 
tisan attitude of the legislature. Thus that body 
instantly proceeded to elect a new Council of Ap- 
pointment, of which only one member was a Feder- 
alist ; and the new council, from the moment when 
it first met the governor in the following February, 
began a controversy which was settled only by an 
amendment to the Constitution. 

Before separating, after adjournment on Novem- 
ber 8, the Republicans nominated Clinton as their 
next candidate for the governorship, and the Fed- 
eralists, in a complimentary address, urged Jay to 
consent to be renominated. " The period is now 
nearly arrived," was Jay's answer, "at which I 
have for many years intended to retire from the 
cares of public life, and for which I have been 
for more than two years preparing ; not perceiving, 
after mature consideration, that my duties require 
me to postpone it, I shall retire accordingly." ^ 

The contest between the governor and a major- 
ity of the Council of Appointment must be men- 
tioned, though briefly. On February 11 the gov- 
ernor made a nomination for sheriff of Dutchess 
County ; it was rejected. Seven other nominations 
by him for the same office were successively re- 
1 Jay's Jay, i. 419, 420. 



298 JOHN JAY 

jected. He then nominated a Republican, who was 
confirmed. On February 24 the governor made 
several nominations for sheriff of Schoharie and 
sheriff of Orange, but all were rejected. Finally 
a member of the council made a nomination, and 
the governor, instead of putting the question, made 
another. The issue was now defined, the governor 
insisting on the sole right of nomination, and the 
council claiming, for the first time, a concurrent 
right. The governor never called the council to- 
gether again. In a special message to the legisla- 
ture he referred to his first address as governor, 
when he had requested a settlement of the ques- 
tion, and now he again asked their directions. 
The legislature declined acting on a constitutional 
question. He asked the opinion of the judges of 
the Supreme Court and the chancellor ; but they 
refused to decide the question as extra-judicial. 
On April 6 an act was passed " recommending a 
convention" to ascertain the construction of the 
disputed clause in the Constitution, and to consider 
the question of diminishing the number of senators 
and assemblymen. The convention, which met after 
the election of Clinton as governor, upheld the po- 
sition of the coxmcil. In the later Constitutional 
Convention of 1821 Governor Tompkins, who had 
voted against his party in the earlier body, declared 
that it was " assembled to sanction a violent con- 
struction of the Constitution. Then, the maxim 
was to strip the governor of as much power as pos- 
sible. Now, gentlemen are for giving him more 



GOVERNOR OF NEW YORK 299 

power." 1 It was, indeed, the allowing members of 
the council, among whom were various senators, 
to exercise the power of nomination as well as 
confirmation, that made the council a byword for 
political corruption and favoritism until popular 
contempt achieved its abolition. 

In his first address to the legislature, as we have 
seen. Jay had announced that he would seek out 
and advance merit, wherever found ; and there is 
no reason to doubt that, so far as the political 
complexion of the council and the exigencies of 
the times permitted, he endeavored to do so. For 
appointments, however, he was not solely respon- 
sible ; and for removals he was not necessarily re- 
sponsible at all, as a person might be removed from 
office on motion of any member of the council by 
a majority vote. His son. Judge William Jay, 
says : — 

" During the six years of Governor Jay's admin- 
istration, not one individual was dismissed by him 
from office on account of his politics. So long as 
an officer discharged his duties with fidelity and 
ability, he was certain of being continued, and 
hence his devotion to the public became identified 
with his personal interest. It is related that in the 
council a member was urging in behalf of a candi- 
date his zeal and usefulness a^ a Federalist, when 
he was interrupted by the governor with : ' That, 
sir, is not the question ; is he fit for the office ? '" 2 

1 Hammond, Pol. Hist, of N. Y. ii. 155, 156, 166, 167. 

2 Jay's Jay, i. 392. 



300 JOHN JAY 

And it is significant that, in answer to this state- 
ment, Hammond, the Republican historian of New 
York, could only point to two cases where the 
causes of removal might possibly have been polit- 
ical, but were not certainly so. Mr. Flanders cor- 
roborates Judge Jay, saying : — 

" The practice of removing officers on a change 
of administration had not yet been introduced. 
Governor Jay dismissed no officer during the six 
years of his administration on account of his polit- 
itical opinions. On one occasion he was urged to 
remove a member of his own party who had little 
or no influence, to make room for one of the oppo- 
site party who possessed a great deal, and would, 
if appointed, use it in favor of his new connections. 
*And do you, sir,' replied the governor to this 
unusual application, 'advise me to sell a friend 
that I may buy an enemy ? ' " i 

In respect to the whole question under consid- 
eration Jay was sensitively conscientious. Thus, 
when Gouvemeur Morris asked him to recommend 
a nephew of Morris's to the President for an ap- 
pointment, the refusal, which Morris said he had 
anticipated, was prompt : " It appears to me," said 
Jay, " that the President of the United States and 
the governors of individual States should forbear 
to interpose their official or personal influence with 
each other in the appointment of officers. It would 
open a door for reciprocal recommendations which 
would frequently prove embarrassing from the diffi- 
1 Flanders, Chief Justices, i. 416. 



GOVERNOR OF NEW YORK 301 

culty of always reconciling them to local circum- 
stances and public considerations." ^ 

Jay's determination to retire from public life 
was absolute and final. He was unmoved even by 
the complimentary letter of President Adams an- 
nouncing his unsolicited nomination and confirma- 
tion, a second time, as chief justice of the United 
States. "I had no permission from you," said 
President Adams, " to take this step, but it ap- 
peared to me that Providence had thrown in my 
way an opportunity, not only of marking to the 
public the spot where, in my opinion, the greatest 
mass of worth remained collected in one individ- 
ual, but of furnishing my country with the best 
security its inhabitants afforded against its increas- 
ing dissolution of morals." ^ "I left the bench," 
Jay replied, " perfectly convinced that under a 
system so defective it would not obtain the energy, 
weight, and dignity which was essential to its af- 
fording due support to the national government ; 
nor acquire the public confidence and respect 
which, as the last resort of the justice of the na- 
tion, it should possess. Hence I am induced to 
doubt both the propriety and the expediency of 
my returning to the bench under the present sys- 
tem. . . . Independently of these considerations, 
the state of my health removes every doubt." ^ 

On January 13 the Federal Freeholders of New 

1 To G. Morris, November 26, 1799, Jay MSS. 

2 John Adams to Jay, December 18, 1800, Jay's Jay, ii. 421. 
2 To President Adams, January 2, 1801, Jay MSS. 



302 JOHN JAY 

York passed resolutions commending his public 
services and regretting his retirement; and his 
answer showed how far removed he was from the 
violent partisanship of the day : " I take the lib- 
erty of suggesting whether the patriotic principles 
on which we profess to act do not call upon us to 
give (as far as may depend upon us) fair and full 
effect to the known sense and intention of a ma- 
jority of the people, in every constitutional exer- 
cise of their wiU, and to support every administra- 
tion of the government of our country, which may 
prove to be intelligent and upright, of whatever 
party the persons composing it may be." ^ These 
certainly are not the words of a disappointed and 
embittered politician. In May the corporation of 
Albany presented him with the freedom of the 
city, " as a further testimony of the high sense the 
common council entertain of your excellency's ex- 
alted character." ^ 

Thus ends the public life of John Jay. For 
twenty-eight years he had been continuously in 
office, his appointments not infrequently overlap- 
ping one another. But public office had always 
been to him a public trust, or rather a public duty, 
and he cared for neither its reputation nor its 
emoluments. 

1 Jay MSS. 2 jay MSS. 



CHAPTER XIII 

IN RETIREMENT 
1801-1829 

The time had come at last to which Jay had 
for years looked forward with so much eagerness, 
when, relieved from public cares, he might devote 
himself to those quiet country pursuits which he 
loved, to the society of his wife, and the education 
of his children. He had inherited a property of 
some eight hundred acres at Bedford, Westchester 
County, forty miles from New York, which had 
fallen to his mother's share on the partition of the 
old Van Cortlandt estate. To this he had added 
by purchases from his brothers : here for some 
years he had been repairing and building addi- 
tions to the dweUing-house, and now with his fam- 
ily he retired to this new home, where he lived 
continuously for the remaining twenty-eight years 
of his life. 

No sooner, however, was the cup of happiness 
at his lips than it was dashed to the ground ; for 
within a year he had to mourn the death of his 
dearly beloved wife. Since their marriage they 
had been pained by constant separations, but their 



304 JOHN JAY 

love for each other had ever been so great as to 
provoke the gentle raillery of their friends, and to 
the day of her death Jay had not come to sink the 
lover in the husband. " Tell me," he wrote to her 
not many years before, referring to her eyes that 
he had not gazed on for months, " tell me, are they 
as bright as ever ? " and her letters to him were 
always what she was fond of calling them, " little 
messengers of love." 

His loneliness, fortunately, was lightened by the 
presence of his children : Ann, who never married 
and in disposition was extremely like her father, 
now just growing into womanhood ; William, a 
serious, studious lad of thirteen years ; and Sarah, 
a pretty little girl, who was to die unmarried when 
only twenty-six years of age. In 1806 an older 
daughter, Maria Banyer, joined the family group 
on her husband's death, bringing with her a 
charming little child, who also soon passed away. 
Mrs. Banyer and Miss Jay lived afterwards a long, 
gentle life of quiet benevolence in New York ; 
there were few works of charity in which they had 
not a part ; and they were the fairy godmothers of 
countless young nephews and nieces. 

For a time the household at Bedford must have 
been a somewhat sad one, but gradually Jay found 
content and happiness in the simple country life, 
with its regular and early hours, with experiments 
in farming and horticulture, with a little reading, 
frequent correspondence with Wilberforce in Eng- 
land, Lafayette and Vaughan in France, and Judge 



IN RETIREMENT 305 

Peters in Philadelphia, and occasional visits from 
old friends who lived within a few days' drive. 
" My expectations from retirement," he was soon 
able to say, " have not been disappointed, and had 
Mrs. Jay continued with me, I should deem this 
the most agreeable part of my life. The post, 
once a week, brings me our newspapers, which 
furnish a history of the times." ..." Attention 
to little improvements, occasional visits, the his- 
tory which my recollections furnish, and frequent 
conversation with the 'mighty dead,' who, in a 
certain sense, live in their works, together with 
the succession of ordinary occurrences, preserve 
me from ennui. . . . Party feuds give me concern ; 
but they seldom obtrude upon me." 

" My farm," he wrote to Judge Peters, " was 
from its first settlement occupied by tenants. 
They have left no trees fit for rails ; nor can I 
obtain a supply in this neighborhood. The stones 
they could not destroy, and they are the only ma- 
terials I have for fence. With some expense I 
had collected and formed a flock [of sheep] which 
pleased me, but the unceasing care and trouble of 
keeping them, induced me to seU them and to buy 
what are here called otter sheep. They have short, 
crooked legs, and are no beauties, . . . but they 
are orderly and stay at home, and that is more 
than can be said of most beauties." ^ To Wash- 
ington, at Mount Vernon, he had written about the 
wisdom of introducing a breed of mules. With 

1 November 21, 1810. 



306 JOHN JAY 

others lie discussed a new kind of rye, and the 
novel use of plaster for manuring. " A frost took 
my watermelons when they were about as large as 
a marble," he wrote to Judge Peters, who, though 
still occupying the bench at an advanced age, 
shared Jay's interest in agriculture. " They turned 
black, and dropped off. The ends of the vines be- 
gan to die, and continued to do so for some days. 
I then had the vines cut below the mortified part, 
and the whole well sprinkled with plaster. They 
recovered, and brought some, though not much, 
fruit to perfection. I believe," he continued, " that 
you and I derive more real satisfaction from at- 
tending to our vines and fruit-trees than most con- 
querors from cultivating their favorite laurels." ^ 

Many trees, elms and maples, he planted about 
Bedford ; indeed, several years earlier, in sending 
some mulberry-trees to his son Peter, he became 
almost enthusiastic over what he called this " inno- 
cent and rational amusement." " It always gives 
me pleasure to see trees which I have reared and 
planted," he said, " and therefore I recommend it 
to you to do the same. . . . My father planted 
many trees, and I never walk in their shade with- 
out deriving additional pleasure from that circum- 
stance. The time will probably come when you 
will experience similar emotions." ^ 

He was always fond of animals, and unusually 
kind to them. In 1783, amid the cares and anxi- 

1 February 26, 1810, Jay's Jay, ii. 323. 

2 April 25, 1792, Jay MSB. 



IN RETIREMENT 307 

eties of the negotiations, lie was mindfiJ to write 
to his son : " If my old mare is alive, I must beg 
of you and my brother to take very good care of 
her. I mean that she should be well fed and live 
idle, unless my brother Peter should choose to use 
her. If it should be necessary to advance money 
to recover her, I am content you should do it even 
to the amount of double her value." It was prob- 
ably of another mare that he wrote to Judge 
Peters in 1811 : " There was a mare belonging to 
my father, which I rode as soon as I could ride. 
She was a favorite, and often carried me to and 
from school. Of her stock I have always had sad- 
dle horses. Those which I selected for that pur- 
pose remained mine as long as they lived ; and 
the remembrance of them recalls that of agreeable 
days and incidents. The one I now have is above 
twenty years old, and, though of little real value, 
has more of my particular care and attention than 
any of the others of whatever price. This kind of 
favoritism or predilection may not be philosophi- 
cal, but it is innocent and pleasing, and I indulge 
it. . . . It is a rainy afternoon, I have written a 
long letter, and should probably continue to amuse 
myseK in writing on to the next page, but it is 
now so dark that I can hardly read what I write." ^ 
He was frequently written to for advice on pub- 
lic or semi-public questions, and always responded 
with habitual frankness and common sense. Wil- 
liam Wilberforce requested his views about the 
1 October 16, 1811, Jay MSS. 



308 JOHN JAY 

Reform Bill, which he was agitating in Parliament. 
" Wise and good horough-holders, like wise and 
good kings," replied Jay, " doubtless wish and en- 
deavor to make the best appointments ; but ought 
either borough-holders or kings to appoint repre- 
sentatives for the nation ? " ^ 

A company at Mamaroneck applied to the legis- 
lature for authority to increase its water supply by 
overflowing adjacent land compulsorily on payment 
of damages. Jay indignantly asserted legal princi- 
ples, which, perhaps, have been too little considered 
by subsequent legislatures. "When a piece of 
ground is wanted for a use important to the state, 
I know," he said, " the state has a right to take it 
from the owner on paying the full value of it ; but 
certainly the legislature has no right to compel a 
freeholder to part with his land to any of his fellow 
citizens, nor to deprive him of the use of it, in 
order to accommodate one or more of his neigh- 
bors in the prosecution of their particular trade or 
business. Such an act, by violating the rights of 
property, would be a most dangerous precedent." ^ 

The governor of Ohio submitted to him some 
plans for taxation : " However extensive the con- 
stitutional power of a government to impose taxes 
may be," was Jay's reply, " I think it should not 
be so exercised as to impede or discourage the 
lawful and useful industry and exertions of individ- 
uals. Hence, the prudence of taxing the products 

1 October 25, 1810, Jay's Jay, ii. 331. 

2 To Peter Jay Munroe, March 2, 1812, Jay MSS. 



IN RETIREMENT 309 

of beneficial labor, either mental or manual, ap- 
pears to be at least questionable. . . . Whether 
taxation should extend only to property, or only to 
income, are points on which opinions have not been 
uniform. I am inclined to think that both should 
not be taxed." ^ 

A pamphlet was sent him on "The Missouri 
Question," in 1819, and in acknowledging it he 
expressed his own very decided opinion : " The ob- 
vious dictates both of morality and policy teach us, 
that our free nation cannot encourage the extension 
of slavery, nor the multiplication of slaves, without 
doing violence to their principles, and without de- 
pressing their power and prosperity." ^ 

In politics Jay studiously avoided taking any 
active part, though he performed his duties as a 
citizen with unostentatious punctuality, and contin- 
ued as ever to take keen interest in affairs. " He 
read the papers constantly," said Judge William 
Jay, contradicting a report to the contrary, " and 
at times took papers of opposite politics, that he 
might obtain more full information of passing 
events." ^ " The proprieties attached to a situation 
like mine," wrote Jay to Pickering in 1808, " assign 
certain limits to active interferences in political 
concerns. I attend every election, even for town 
officers, and, having delivered my ballots, return 

^ To E. A. Brown, governor of Ohio, April 30, 1821, Jay's Jay, 
ii. 420, 421. 

2 To Daniel Eaymond, December 21, 1819, Jay's Jay, ii. 406. 

3 Hammond, Pol. Hist. o/N. Y. i. 155 n. 



310 JOHN JAY 

home, without having mingled in the crowd or 
participated in their altercations." ^ 

To Jay, as to most of the older Federalists, the 
war of 1812 seemed ill-advised. He said : " In 
my opinion, the declaration of war was neither 
necessary, nor expedient, nor reasonable ; and I 
think that they who entertain this opinion do 
well in expressing it, both individually and collec- 
tively ; " but he added this important qualification : 
" As the war has been constitutionally declared, 
the people are evidently bound to support it in 
the manner which constitutional laws do or shall 
prescribe." 2 He accordingly for the time joined 
that section of the Federalists known as the Peace 
Party; but he was no partisan, and when the 
party nominated for assemblyman, from West- 
chester County, a man of objectionable private 
character. Jay and his friends promptly joined in 
defeating him. In vindicating his action, he laid 
down the ethical rules that should determine obli- 
gation to one's party, rules of general application, 
but which in these days would be stigmatized as 
the unpractical notions of a doctrinaire or " Mug- 
wump." " "We approve," he said, " of the cus- 
tomary mode of nominating candidates, and have 
uniformly concurred in it; that concurrence cer- 
tainly involved our tacit assent to be bound by the 
nominations which should be so made. But it is 
equally certain that such consent did, does, and ever 

1 December 24, 1808, Jay MSS. 

2 July 28, 1812, Jay's Jay, I 445. 



IN RETIREMENT 311 

will rest on the condition, trust, and confidence that 
such nominations only be made as we could or can 
support, without transgressing the obligations we 
are under to preserve our characters and our minds 
free from humiliation and reproach. . . . Adher- 
ence to party has its limits, and they are prescribed 
and marked by that Supreme Wisdom which has 
united and associated true policy with rectitude, 
and honor, and self-respect." ^ 

In 1815 Jay became president of the Westches- 
ter Bible Society ; the next year, on the organiza- 
tion of the American Bible Society, he was ap- 
pointed one of its vice-presidents, and, on the death 
of Elias Boudinot in 1821, its president. He was 
also a member of the Tract and Simday-school 
societies, and of that for educating pious youth for 
the ministry. In 1814 he was elected a member 
of the American Antiquarian Society. 

Jay's health had always been delicate : now, in 
his later years, he was seldom free from attacks of 
rheumatism, or some disorder of the liver, but the 
most serious ailment of all was what he termed 
" the incurable " one of old age. In 1813 Gouver- 
neur Morris asked him to become godfather to his 
son : " True it is that you may not be able to per- 
form the duties of that office; but, my friend, 
should you be mingled with the dust, he shall learn 
from the history of your life, that a man must 
be truly pious to be truly great." ^ But Jay felt 

1 Jay's Jay, i. 449. 

2 February 15, 1813, Jay's Jay, ii. 365. 



312 JOHN JAY 

bound to decline on the ground of old age ; " as I 
expect," he said, " to remove at a more early period 
to a distant country, where I shall not be in a 
capacity to attend to persons or things here." ^ 

In 1814 he was invited by Rufus King to join 
their friends in the city " in the proposed celebra- 
tion of the overthrow and repulsion of Bonaparte ; " 
but he regretted that his health prevented his pre- 
sence on " so joyful an occasion." ^ In 1821 a note 
in the third volume of Franklin's Works, then just 
published, that the editor had consulted journals 
kept by Jay and Adams concerning the peace nego- 
tiations, led the two old friends once more to ex- 
change letters. The note was of course erroneous. 
There was, however, something touching in the 
greeting of these aged men. " I too am feeble and 
confined to the house the greater part of the win- 
ter," wrote Adams, " but I hope to crawl out like 
a turtle in the spring ; your chirography gives me 
full assurance that you will be on horseback before 
that time." ^ " For twelve years past," wrote Jay, 
" I have not had one well day. ... It rarely hap- 
pens that the maladies and infirmities which gen- 
erally accompany old age will yield to medical 
skill ; but happily for us patience and resignation 
are excellent palliatives." * "I hope," replied Ad- 
ams, " you will be a member of the convention in 
New York [for the revision of the Constitution]. 
It will want some such heart-of-oak pillar to sup- 

1 Jay's Jay, ii. p. 356. ^ j^ne 23, 1814, Jay MSS. 

8 March 6, 1821. * May 7, 1821. 



IN RETIREMENT 313 

port the temple." ^ But the old statesman was not 
called on to attend the convention, though his son, 
Peter Augustus, was a delegate. 

Occasional visits from friends to Bedford cheered 
Jay's declining years. Then, as he smoked his long 
clay pipe, he used to delight in telling anecdotes of 
the Revolution, the true history of which he often 
said never had been and never would be written. 
Of such conversations, unfortunately, there is but 
scanty record. His opinion of the second Con- 
tinental Congress, expressed to Gouverneur Mor- 
ris, has been already quoted ; and Fenimore Cooper 
was so impressed by hearing from his lips a story 
of his own experience as to make it the ground- 
work of "The Spy." Jay was speaking of the 
heroism and patriotism shown during the Revo- 
lution by men in humble life and of little learning. 
When on a secret committee to prevent the enlist- 
ment of troops in Westchester County by the Brit- 
ish, he had occasion to employ a poor man, "but 
cool, shrewd, and fearless," to act the part of a 
spy. " It was his office to learn in what part of 
the country the agents of the crown were making 
their efforts to embody men, to repair to the place, 
enlist, appear zealous in the cause he affected to 
serve, and otherwise to get possession of as many 
of the secrets of the enemy as possible." He ran 
the risk not only of discovery by the English, but 
of falling into the hands of his fellow countrymen. 
Frequently he was arrested by the local authorities, 
1 May 13, 1821. 



314 JOHN JAY 

and once he was condemned to the gallows, and 
was saved only just in time by private orders to 
his jailer. " By the Americans in his little sphere 
he was denounced as a bold and inveterate Tory." 
Thus he continued to serve his country in secret 
during the early years of the Kevolution. Jay, on 
being appointed to Spain, reported an outline of 
the facts to Congress and obtained an appropria- 
tion for his agent, without revealing his name ; and 
undertook to deliver the money personally. They 
met in a wood at midnight. Jay praised his com- 
panion for his fidelity and adroitness, and finally 
tendered the money ; but the man drew back and 
refused to receive it. " The country has need of 
all its means," he said ; " as for myself, I can work, 
or gain a livelihood in various ways." ^ 

In the spring of 1818 Peter Van Schaack and 
Judge Egbert Benson " went from Kinderhook to 
Bedford, in the judge's one-horse wagon, ... to 
visit their mutual and bosom friend, Mr. Jay. 
They were both, at this time, upwards of seventy." * 
" A happy new year," wrote Van Schaack, at the 
dawn of 1826. " You have passed fourscore, and 
I am but a few months from it. Benson is between 
us, and I shall soon be followed by Harrison, 
Watts, and Rutgers. These I believe are all that 
survive of our college contemporaries. JVos turha 
sumus." ^ Two years later, in an address before 

^ J. Fenimore Cooper, Introduction to The Spy, 

2 Life of Peter Van Schaack, p. 451. 

3 Ibid. p. 458. 



IN RETIREMENT 315 

the New York Historical Society, Judge Kent re- 
ferred to Jay as the sole survivor of those who sat 
in the first Continental Congress. The next year 
Jay joined the rest of that "memorable conven- 
tion." 

" For many months before his death he was un- 
able to walk without assistance. During the day 
he passed much of the time in his own room ; the 
evenings were spent with his children and guests, 
partly in conversation, and partly in listening to 
books which were read aloud by one of the family. 
Unable to attend church, he occasionally had the 
Lord's Supper administered to him in his chamber." 
In the night of May 14, 1829, he had an attack of 
palsy, and on the 17th he died. In his will he re- 
membered his servants, and gave his gold watch to 
his special attendant ; he directed that there should 
be " no scarfs, no rings," provided at the funeral ; 
" instead thereof I give two hundred dollars to any 
one poor deserving widow or orphan of this town, 
whom my children shall select." The funeral ser- 
vices were held at Bedford, but he was buried in 
the family graveyard at Eye. In New York the 
courts were in session, and brief eulogies were de- 
livered by the presiding judges on news of the 
decease of the late chief justice. "Few men in 
any country, perhaps scarce one in this," said Chief 
Justice Jones at the opening of the Superior Court, 
"have filled a larger space, and few ever passed 
through life with such perfect purity, integrity, 
and honor." ^ 

1 Mirror, May 30, 1829. 



316 JOHN JAY 

Jay's principles of conduct were so unvarying, 
and his actions so consistent with them and with 
one another, that the most careless reader of his 
life, if it has been fairly presented, must be al- 
ready familiar with the dignified and simple char- 
acter of the man. Everything he did seems to 
have been inspired by a keen sense of impersonal 
moral duty. He might for a time be uncertain as 
to what this duty was, but the moment it was clear 
to him, he acted accordingly, promptly, fearlessly, 
without regard to personal considerations, unde- 
terred by the consequences to his friends or his 
family. It was this singleness and uprightness of 
purpose, and the firmness with which he adhered to 
it, that made Adams call him " a Roman." In dis- 
position he was more like an ancient hero, such as 
Cato, than he was like any of his contemporaries ; 
but where the Roman found moral inspiration in 
philosophy. Jay found both inspiration and great 
comfort and happiness in religion. It was one of 
his favorite remarks, that if men would never for- 
get that the world was under the guidance of a 
Providence which never erred, it would save much 
useless anxiety, and prevent a great many mis- 
takes. This optimistic fatalism, if one may so 
term it, produced in Jay a singular serenity of 
temper. When he had done what he conceived to 
be his duty, he was satisfied that all was for the 
best, and was undistracted by popular applause or 
condemnation. 

Such complete self-dependence and self-control 



IN RETIREMENT 317 

are generally held by the world at large to be 
somewhat un amiable qualities ; and many have 
doubtless deemed Jay, in consequence, a cold, aus- 
tere man, with all the classic virtues, but also with 
much of classic remoteness from ordinary humanity. 
Such, however, is very far from truth. No man in 
his day had warmer, truer, or more constant friends. 
There were few who were nearer to the heart of 
Washington. Hamilton from early youth admired 
and trusted him. He won even the affection of 
those who, like Alexander McDougall and John 
Adams, began by misunderstanding him. His 
friendship with Franklin was unaffected by their 
differences at the negotiation of the peace ; and his ^^ 
friendship with Peter Van Schaack seemed to be 
only strengthened by the sternness of his judgment 
in the secret committee. Even Captain Paul Jones 
wrote from Paris : " As there is no man who in- 
spires me with more esteem than yourself, I beg 
you to accept my bust as a mark of my affection ; " ^ 
and it must have been a lovable character, indeed, 
to whom Gouverneur Morris would have sent this 
brief note across the sea : — 

Dear Sir, — It is now within a few minutes of the 
time when the mail is made up and sent off. I cannot 
therefore do more than just to assure you of the continu- 
ance of my love. Adieu. Yours, 

Gouv. Morris.^ 

"To see things as they are, to estimate them 

1 February 8, 1787, Jay MSS. 

2 November 7, 1783, Jay MSS. 



318 JOHN JAY 

aright, and to act accordingly, is to be wise," Jay 
once wrote to Wilberforce ; ^ and this saying he 
repeated again, with the addition : " to do this 
effectually, self-command is absolutely indispensa- 
ble. To look at objects through our passions 
is like seeing through colored glass, which always 
paints what we view in its own and not in the true 
color." 2 " To avoid mistakes," he said again, " it 
is necessary to see things as they really are. Mi- 
nutise are often omitted, or imperfectly drawn in 
representations. Great part of the good within 
our reach depends on minutiae; they merit more 
attention than many apprehend." ^ Here is to be 
found the secret of Jay's great success as a com- 
promiser and negotiator. Without prejudice, he 
would proceed carefully to examine all the facts, 
and then it would seldom happen that they would 
not suggest a course of action at once obvious and 
mutually satisfactory. 

He was eminently prudent, discreet, wary, and, 
though conscientiously truthful, averse to saying 
more than was necessary. Prudence was a virtue 
inherited from his father, and he handed on the 
tradition to his children. " The longer we live, 
and observe what passes in the world," he said, 
" the more we become sensible of the value and of 
the necessity of prudence." * The lesson was veri- 

1 November 3, 1809, Jay's Jay, ii. 320. 

2 Jay's Jay, ii. 429. 

3 To B. Vanghan, March 21, 1784, Jay MSS. 

* From letters to his children, Jay's Jay, ii. 428. 



IN RETIREMENT 319 

fied by the misunderstandings of the factions at 
the beginning of the Kevolution, by the false 
constructions put on language by the anti-Federal- 
ist and Democratic demagogues and newspapers. 
As he became old the habit of reticence grew 
upon him ; but it had always been a personal char- 
acteristic, as is shown by an anecdote that Col- 
onel Troup used to tell. " ' Let us ride over,' said 
General Gates to Troup, soon after the surrender 
of Burgoyne, ' and see the chief justice ' [who was 
then at Fishkill] ; ' I wish to learn his opinion of 
our late Saratoga convention.' They went; and 
during a two hours' visit Gates labored in vain to 
draw from Mr. Jay some favorable opinion of that 
military mistake. Finding himself ever baffled, 
he at length ventured upon the direct question : 
" Pray, Mr. chief justice, do you not think the 
Saratoga convention a good convention? ' ' Un- 
questionably, my dear general,' was the ready 
reply, ^provided you could not have made a bet- 
ter.' ' Come,' said the general to his companion, 
' it is time for us to go.' " ^ Professor McVickar, 
of Columbia College, whose sister had married 
William Jay, and who was ever a welcome visitor 
at Bedford, relates a similar experience with Jay 
in his later years. Once, with some pertinacity, 
he pressed the old gentleman for an opinion on the 
authenticity of Washington's Farewell Address. 
The discovery of a copy of it among Hamilton's 
papers in his handwriting had raised the question 

1 Professor John McVickar, in N. T. Review, October, 1841. 



320 JOHN JAY 

of its authorship, which, as a matter of fact, was 
settled by Jay's statement that the address had 
been submitted to him and Hamilton for sugges- 
tions and amendments, and, not wishing to spoil 
Washington's fair manuscript, they had made 
their notes on a copy.^ " When," said McVickar, 
"the slow-puffing pipe and the deaf ear turned 
were no longer an apology for not hearing, the 
answer came out with a quiet smile : ' My opinion, 
my dear sir, you shall freely have. I have always 
thought General Washington competent to write 
his own addresses.' " ^ 

With such a disposition Jay was inevitably a 
moderate man, choosing, whenever possible, the 
middle way between extremes, selecting the course 
that his judgment commended, independent of the 
dogmas of creed or party, even in religious ques- 
tions. " In forming and settling my belief rela- 
tive to the doctrines of Christianity," he wrote to 
a clergyman, " I adopted no articles from creeds, 
but such only as, on careful examination, I found 
to be confirmed by the Bible." ^ Towards reli- 
gious views different from his own he was very tol- 
erant, but he had no toleration for atheists. At 
a party in Paris once the conversation fell on re- 
ligion. " In the course of it," said Jay, " one of 
them asked me if I believed in Christ ? I an- 
swered that I did, and that I thanked God that 

1 Professor Jolin McVickar, in N. Y. Review, October, 1841. 

2 To Judge Peters, March 29, 1811, Jay's Jay, ii. 345. 

3 To Rev. Samuel MiUer, February 10, 1822, Jay MSS. 



IN RETIREMENT 321 

I did. Nothing further passed between me and 
them, or any of them, on that subject." Some 
time afterward an English physician, attending 
one of the family, " during one of his visits very 
abruptly remarked, that there was no God, and he 
hoped the time would come when there would be 
no religion in the world. I very concisely re- 
marked that if there was no God, there could be 
no moral obligations, and I did not see how 
society could exist without them. He did not 
hesitate to admit that, if there was no God, there 
could be no moral obligations, but insisted that 
they were not necessary, for that society would 
find a substitute for them in enlightened self-inter- 
est. I soon turned the conversation to another 
topic, and he, probably perceiving that his senti- 
ments met with a cold reception, did not afterward 
resume the subject." ^ 

In politics, as has been noted. Jay preserved his 
independence of action ; but his own declaration 
may be worth quoting : " In the course of my pub- 
lic life I have endeavored to be uniform and inde- 
pendent, having, from the beginning of it in 1774, 
never asked for an office or a vote, nor declined 
expressing my sentiments respecting such impor- 
tant public measures as, in my opinion, tended to 
promote or retard the welfare of our country." ^ 
Frequently such outspoken opinions required no 
little courage ; but he did not hesitate to condemn 

1 To John Bristed, April 23, 1811, Jay's Jay, ii. 346, 347. 

2 Jay's Jay, u, 419. 



322 JOHN JAY 

the popular confiscation acts, to urge the abolition 
of slavery, and to declare his honest opinion about 
the French Revolution ; and yet, as has been seen, 
his opinions on all these questions were in no 
sense extreme. The experiences that usually blind 
men's eyes and prejudice their judgment left him 
clear-sighted and fair-minded. Even the throes of 
the Revolution did not make him unjust to Eng- 
land. " I view a return to the domination of Brit- 
ain with horror," he wrote in 1778, " and would 
risk all for independence ; but that point ceded, I 
would give them advantageous commercial terms. 
The destruction of Old England would hurt me ; 
I wish it well ; it afforded my ancestors an asylum 
from persecution." ^ 

His integrity, strength of character, and fairness 
made Jay admirably suited to a judicial career. 
How painstaking he was to keep himself wholly 
free from improper influence is well seen in his 
letter to Trumbull, who had just been appointed 
a commissioner imder the treaty of 1794. " Firm- 
ness, ... as well as integrity and caution, will be 
requisite to explore and persevere in the path of 
justice. They who, in following her footsteps, 
tread on popidar prejudices, or crush the schemes 
of individuals, must expect clamor and resent- 
ment. The best way to prevent being perplexed 
by considerations of that kind is to dismiss them 
all, and never to permit the mind to dwell upon 
them for a moment. . . . Although a judge may 

1 To Gouvemeur Morris, April 29, 1778, Jay's Jay, ii. 24. 



IN RETIREMENT 323 

possess the best talents and the purest intentions, 
yet let him keep a jealous eye over his sensibilities 
and attachments, lest they imperceptibly give to 
error too near a resemblance to truth. Nay, let 
him even watch over that jealousy, for the appre- 
hension of being thought partial to one side has a 
tendency to incline a delicate mind towards the 
other." 1 

Jay was frequently accused of being an aristo- 
crat, of not being in fidl sympathy with demo- 
cratic institutions. The same charge was brought 
against Washington, Adams, and the Federalists 
generally, as a party. In the strict meaning of 
the words, perhaps, it may be admitted that Jay 
was a republican but not a democrat ; but in this 
he was in agreement with the majority of the 
thoughtful men of his generation. To the states- 
men of the eighteenth century an absolutely demo- 
cratic government, with manhood suffrage, and 
with all power in the hands of the majority, was 
something unknown. What precedents there were 
in the histories of Greece and Rome seemed to 
show that any approximation to such a govern- 
ment was full of danger to society, and never 
permanent for any length of time ; and contempo- 
rary events in France were not more reassuring. 
They were practical men, not theorists, and dis- 
trusted any principle, however pleasing, which had 
not been long tried and tested. It is from this 
point of view that many of Jay's opinions should 
1 To John TrumbuU, October 20, 1796, Jay MSS. 



324 JOHN JAY 

be considered. " As to the position that ' the peo- 
ple always mean well,' or, in other words, that 
they always mean to say and do what they believe 
to be right and just, — it may be popular, but it 
cannot be true. The word people . . . applies to 
all the individual inhabitants of a country. . . . 
That portion of them who individually mean well 
never was, nor until the millennium will be, con- 
siderable." ^ " Pure democracy, like pure rum, 
easily produces intoxication, and with it a thou- 
sand mad pranks and fooleries." ^ Such remarks, 
however, are misleading, unless they are taken in 
connection with Jay's policy as a whole. Fortu- 
nately, he stated this concisely but comprehensively 
in a letter to Vaughan in 1797. " To me it ap- 
pears important that the American government be 
preserved as it is, until mature experience shall 
very plainly point out very useful amendments to 
our Constitution ; that we steadily repel all for- 
eign influence and interference, and with good 
faith and liberality treat all nations as friends in 
peace, and as enemies in war ; neither meddling 
with their affairs, nor permitting them to meddle 
with ours. These are the primary objects of my 
policy. The secondary ones are more numerous, 
such as to be always prepared for war, to cultivate 
peace, to promote religion, industry, tranquillity, 
and useful knowledge, and to secure to all the 
quiet enjoyment of their rights by wise and equal 

1 To Judge Peters, March 14, 1815, Jay's Jay, ii. 370. 

2 To Judge Peters, July 24, 1809, Jay MSS. 



IN RETIREMENT 325 

laws irresistibly executed. I do not expect that 
mankind will, before the millennium, be what they 
ought to be ; and therefore, in my opinion, every 
political theory which does not regard them as 
being what they are will prove abortive." ^ Such 
a policy is certainly neither narrow nor illiberal, 
and when there is added to it the following decla- 
ration, it can hardly be termed aristocratic in any 
proper meaning of the word : "I wish to see all 
unjust and unnecessary discriminations everywhere 
abolished, and that the time may come when all 
our inhabitants of every color and discrimination 
shall be free and equal partakers of our political 
liberty." 2 

The type of man that is now regarded as dis- 
tinctively American, and the watchwords, glitter- 
ing and unscientific generalities for the most part, 
which are often upheld as comprehending the whole 
doctrine of American policy, originated rather in 
the ferment of the French Revolution than of that 
in which Jay was a leader. It is then, perhaps, 
not without interest to recall the simple, practical, 
sturdy, common-sense principles, based on fact and 
history, which animated that earlier generation, 
and made their work permanent in a sense almost 
unexampled among the works of men. 

Once, for instance, in ordering a watch and 
chain for Mrs. Jay, through a friend, he remarked : 
" In these as in most things we must be guided 

1 Jay's Jay, ii. 232. 

2 To Dr. Rush, March 24, 1785. 



326 JOHN JAY 

by the rules of propriety which one's situation and 
circumstances dictate. Neatness and utility is all 
I ought or wish to aim at in dress or equipage, and 
perhaps every citizen of a republic would do well 
to forbear going farther." ^ 

1 To William Franklin, April 1, 1781, Jay MSS. 



INDEX 



INDEX 



Adams, Abigail, thanks Mrs. Jay for 
hospitality, 218. 

Adams, Charles Francis, on causes of 
corruption in Continental Congress, 
140; gives true explanation of 
Franklin's attitude toward France, 
186. 

Adams, John, first comments of, on 
Jay, 31 ; on Jay's reasons for object- 
ing to opening Congress with prayer, 
33 ; comments on Jay's various ad- 
dresses for Congress, 41 ; on reluc- 
tance of America for independence, 
42; says that his letter to Wythe 
furnished Jay with model for New 
York Constitution, 69 : satisfied with 
New York Con.stitution, 81 ; ap- 
pointed minister to' treat with Oreat 
Britain, 113 ; candidate of New Eng- 
land, 113, 144 ; says Jay's quarrel 
with Gerard made him distrust all 
Frenchmen, 115; his instructions 
dictated by Luzerne, 141 ; disliked 
in France, 144 ; complained of by 
Franklin, 144 ; endeavors of Ver- 
gennes to have him instructed to 
follow French directions, 144-146; 
believes Vergennes to have inspired 
Rayneval, 167 ; arrives in Paris, 
182 ; describes Jay's position, 182, 
183 ; consults with Jay and Frank- 
lin, 183, 184 ; his comments on 
Franklin's attitude exaggerated, 
186; tells Franklin of his determi- 
nation to support Jay, 187 ; suggests 
separating British debts and Tory 
claims, 188 ; convinces Strachey 
regarding northeastern boundary, 
188 ; discusses fisheries, 189 ; tells 
Vergennes of difficulties over To- 
ries and Penobscot, 190 ; reports 
to Livingston unanimity among com- 
missioners, 191 ; suspects ideas of 



cabinet concerning fisheries in- 
spired from Versailles, 193 ; ex- 
plains fisheries and draws up clause, 
193, 194 ; insists on " right " of fish- 
eries, 194 ; on necessity of signing 
treaty, 195 ; says credit for treaty 
is Jay's, 200 ; complained of by 
Vergennes as unmanageable, 200; 
his appointment as minister to Eng- 
land urged by Jay, 203 ; compli- 
ments Jay in letter to Barclay, 204 ; 
protests against British retention of 
western posts, 214 ; letter of Jay to, 
on this subject, 215 ; his request for 
a favor declined by Jay, 216 ; let- 
ters of Jay to, on collapse of Con- 
federacy, 221, 223 ; on importance 
of Jay in adoption of Constitution, 
233, 234 ; receives degree of LL. D. 
from Dublin, 239 ; invites Jay to 
visit him, 239; considers Pinckney 
pro-Gallican, 265 ; on grounds of 
opposition to Jay for special envoy 
to England, 266 ; nominates Jay for 
chief justice, 301 ; late correspond- 
ence of Jay with, 312 ; wishes Jay 
to be member of New York Conven- 
tion, 312; calls Jay "a Roman," 
316 ; his friendship with Jay, 317. 

Adams, John Quincy, his explanation 
of Franklin's conduct, 186. 

Adams, Samuel, on committees with 
Jay, 40, 44; his absence enables 
Luzerne to manage Congress, 145 ; 
opposes any terms of peace which 
do not preserve fisheries, 169. 

Allen, Ethan, writes pamphlet vindi- 
cating independence of Vermont, 
94. 

Alsop, John, chosen delegate to Conti- 
nental Congress, 29 ; reelected, 39 ; 
urged by Hamilton to frustrate 
Tory scheme, 47. 



330 



INDEX 



Ames, Fisher, admitted to practice in 
Supreme Court, 237 ; his speech on 
the Jay treaty, 283. 

Antiquarian Society, American, 311. 

Aranda, Marquis d', negotiates with 
Franklin, 114; complains of Jay's 
pride, 122 ; admired by Jay, 122 ; 
fruitless negotiations of Jay and 
Franklin with, 153; proposes re- 
stricted boundaries to Jay, 165, 166 ; 
makes last futile attempt to treat 
with America without acknowledg- 
ing independence, 178, 179 ; again 
interposes during negotiations with 
regard to Mississippi valley, 191. 

Ashburton, Lord, gives opinion that a 
new commission to Oswald comes 
within terms of enabling act, 176. 

Bache, Theofhtlact, on Revolution- 
ary committee in New York, 28. 

Bancroft, Edward, statement of Mar- 
bois to, 170. 

Banyer, Mrs. Maria, with her father, 
John Jay, in his retirement, 304 ; 
her character, 304. 

Barclay, Thomas, settlement of Jay's 
accounts with, 203 ; letter of Adams 
to about Jay, 204. 

Bayard, Anna Maria, grandmother 
of John Jay, 1. 

Bayard, Miss Rebecca, refused a favor 
by Jay, 66. 

Bayard, William, Tory relative, ig- 
nored by Jay in London, 203. 

Beaumarchais, Caron de, provides 
Deane with war material, 96, 134 ; 
persuades tiouis XVI. to intervene 
to aid colonies, 133, 134 ; his claims 
to compensation urged upon Con- 
gress, 211. 

Benson, Egbert, member of the 
" Moot " law club, 17 ; letter of Jay 
to, on Tory refugees in London, 
202 ; admitted to practice in Su- 
preme Court, 237 ; on Jay's election 
as governor of New York, 284 ; visits 
Jay in 1818, 314. 

Bentham, Jeremy, his friendship with 
Jay, 280. 

Betsey, sloop, its condemnation by a 
French prize court annulled by Jay, 
262. 



Bible Society, American, 311. 

Blaney, David, carries Jay treaty to 
America, describes his exertions to 
reach Congress before adjournment, 
272. 

Bonvouloir, , French emissary, 

has mysterious interviews with Jay 
and others, 44 ; approves Jay's de- 
fense of Deane, 98 ; sends Deane to 
sound French court, 133 ; boasts of 
his power over Congress, 140. 

Boston, help sent to by New York, 37 ; 
Tories sent to, 61. 

Boston Port Bill, news of, reaches 
New York, 23; its effect, 24; de- 
nounced in New York, 26, 28, 37. 

Boudinot, Elias, admitted to practice 
in Supreme Court, 237 ; president 
of American Bible Society, 311. 

Broome, Colonel, on committee to 
prepare plan of government for 
New York, 58. 

Burgoyne, General, invades New 
York, 83, 86; summons people of 
Vermont to return to allegiance, 95 ; 
answer of Schuyler to his proclama- 
tion, 96 ; effect of his surrender in 
promoting French alliance, 135. 

Burke, Edmund, resigns o£Bce, 154; 
friendly with Jay, 280. 

Burr, Aaron, gives legal opinion 
against validity of Federalist votes 
in order to elect Clinton, 248 ; its 
unsoundness, 249 ; succeeds by 
management in carrying New York 
against Federalists, 295. 

Cabanis, , describes Franklin's life 

at Passy as a masterpiece of art, 135. 

Canada, address of Congress to, 36, 
40 ; invasion of, disapproved by 
Washington and Jay, 88, 151 ; its 
retention by England favored by 
France, 138, 151 ; its cession sug- 
gested by Franklin, 151. 

Carmichael, William, accompanies Jay 
to Spain as secretary of legation, 
115 ; sent ahead by Jay to Madrid, 
116 ; represents United States after 
Jay's departure, 127 ; hinders Jay's 
return by his slowness, 203. 

Camahan, Dr., reports conversation 
of Jay on English mission, 267. 



INDEX 



331 



Chambers, Captain, sent away from 
New York by Liberty Boys, 23. 

Charles III, of Spain, his objections to 
entering on war with England, 108 ; 
described by O'Reilly to Jay, 116. 

Charleston, effect of its capture on 
Spanish feeling, 120. 

Chatham, Lord, thinks independence 
of colonies a fatal blow to England, 
137. 

Chisolm V. State of Georgia, 252-255. 

Choiseul, a liberal as opposed to Ver- 
gennes, 132. 

Clinton, George, military correspond- 
ence of with Jay, 56 ; his private 
agents, 57 ; refuses to let military 
committee return to convention, 58 ; 
his promise to Bayards not regarded 
by Jay, 66; resignation from com- 
mand of militia not accepted, 77 ; 
elected governor, his character, 82 ; 
unable to be inaugurated owing to 
danger of attack, 83 ; takes oath of 
oflSce, 85 ; letters of Jay to, on Ver- 
mont matter, 103; on reasons for 
resigning chief justiceship, 104 ; on 
insufficient pay of New York dele- 
gates, 104 ; rise of opposition to, in 
New York, 206 ; favors anti-Tory 
legislation, 206 ; his character and 
leadership, 242 ; leads in anti-Fed- 
eral legislation, 243 ; opposes Con- 
stitution, 243 ; elected continuously 
to governorship, 244; grounds for 
Federalist attacks upon, 244, 245 ; 
accused of disloyalty, 245 ; poses as 
a man of the people, 246, 247 ; de- 
feated in election, 247 ; succeeds on 
technicality, 248-250 ; suggests re- 
vision of penal code, 291. 

Clinton, De Witt, trained in Samuel 
Jones's office, 18 ; nominated for 
governor, 297 ; elected, 298. 

Colden, Cadwallader, calls Jay " emi- 
nent " in 1774, 19 ; describes factions 
among New York patriots, 24 ; in 
controversy over Judge Horsman- 
den, 76. 

Committee of Correspondence, estab- 
lished by New York Assembly, 23. 

Confederation, its coUapse in 1788, 
219 ; opinions of Jay on, 219-222. 

Congress, Continental, prepared for 



in New York, 26, 27; delegates 
elected to, 29, 30 ; its character and 
powers, 32 ; diversity of opinion in, 
32, 33 ; appoints committees to 
state the rights of the colonies, 33 ; 
its practical action, 33 ; settles ques- 
tion of voting, 34 ; nearly adopts 
Galloway's plan, 35 ; appoints other 
committees, 35, 36 ; dissolves, 36 ; 
its action popular, 36 ; election of 
delegates to, 38 ; action of sec- 
ond session, 40 ; petitions the king, 
41 ; recommends Massachusetts to 
elect a new assembly, 43 ; appoints 
committees to correspond with 
friends abroad, 44 ; other commit- 
tees on Tories, 44; on privateers, 
45 ; on military matters, 45 ; makes 
an excursion on river, 45 ; recom- 
mends colonies to adopt govern- 
ments, 48 ; adopts harsh law against 
Tories, 59 ; decides against Ver. 
mont in quarrel with New York, 95 ; 
sends Deane to France, 97 ; quarrel 
in, over Deane's defense against 
Lee, 98 ; elects Jay president to suc- 
ceed Laurens, 99 ; appeals to States 
for aid, 100 ; tries to arbitrate Ver- 
mont question, 103 ; unable to co- 
erce, 103 ; elects foreign ministers, 
113 ; sends Jay to Spain, 113, 114 ; 
gives him instructions, 114 ; draws 
bills on Jay, 118, 119 ; corrupted by 
Gerard and Luzerne, 139, 140, 141, 
145 ; modifies instructions to suit 
Luzerne, 141, 143, 144 ; orders com- 
missioners to be guided by French 
advice, 145 ; adds Jay and others to 
peace conunission on Luzerne's sug- 
gestion, 147 ; appoints Jay foreign 
secretary, 205 ; largely led by him, 
207 ; gives Jay full powers, in spite 
of southern members, to surrender 
Mississippi, 210 ; revokes his powers, 
211 ; debates Beaumarchais's claims, 
211 ; appoints committee on terri- 
torial government, 217 ; its ineffi- 
ciency, 217-223. 
Congress of the United States, passes 
judiciary act, 236 ; lays embargo 
against British ships, 263 ; move- 
ment in, to bring on war with Eng- 
land, 264 ; opposition in, to English 



332 



INDEX 



mission, 265, 266; ratifies Jay 
treaty, 282. 

Connecticut, dispute of, with Penn- 
sylvania, 45 ; patriots from, attack 
Kew York Tories, 46 ; cannon from, 
procured for New York, 56 ; re- 
quests extradition of criminals, 284. 

Constitution of New York, recom- 
mended by Congress, 48 ; debate 
over and adoption, 58, 68-78; its 
character, 70-74 ; not submitted to 
ratification, 79 ; its success, 80, 81. 

Constitution of the United States, 
proposed by Jay, 222-223 ; the Fed- 
eral Convention, 225 ; efforts of Jay 
in behalf of, 225-227, 229-234. 

Constitutional law. See Supreme 
Court. 

Cooley, Judge Thomas, on importance 
of decision in Chisholm v. Georgia, 
254. 

Cooper, J. Fenimore, on origin of the 
story of " The Spy," 313. 

Cooper, Dr. Myles, succeeds Johnson 
as president of King's College, 11 ; 
his character, 11 ; punishes Jay for 
refusing to inform against students, 
12. 

Cosby V. Van Dam, 73. 

Cotton, its export prohibited in Jay 
treaty, 276 ; causes of Jay's igno- 
rance concerning its production, 
276, 277. 

Cumberland, Richard, sent by Eng- 
land to draw Spain into separate 
peace, 118. 

Curtenius, , on Revolutionary com- 
mittees in New York, 28. 

Cushing, Judge, visit of Jay to, 239 ; 
letter of Jay to, on popular dislike 
of his treaty, 283. 

Datton, Jonathan, moves in Congress 
to confiscate British debts, 264. 

Deane, Silas, on committee with Jay, 
40 ; his mission to France, 44 ; cor- 
responds with Jay, 44, 97 ; makes 
contracts with Beaumarchais, and 
is attacked by Lee for corruption, 
96; defended by the Morrises, 96, 
97 ; his sincerity, 97, 98 ; defended 
by Jay, 98 ; replies bitterly to Lee, 
98; his French mission due to 



Bonvouloir, 133; deals with Bean- 
marchais, 133, 134 ; commissioned 
foreign representative, 134. 

De Circourt, on French bribery in 
America, 139. 

De Grasse, Admiral, communicates 
between Shelburne and Vergennea, 
172. 

Delancey, James, aided by Jay, al- 
though a Tory, for old friendship, 
64 ; avoided by Jay in London, 203. 

Delancey, Peter, hated by Jay for 
Tory excesses, 65. 

" Delancey Boys," a band of Tory 
partisans, 65; plunder Jay family, 
121. 

Democratic party, its origin and char- 
acter m New York, 242, 243; at- 
tacks administration, 243, 244; 
attacks Jay as an aristocrat, 246, 
247 ; defeated at polls, but retains 
governorship by a technicality, 247- 
249 ; loses popular respect, 252 ; 
sympathizes with French Revolu- 
tion, 256 ; upholds Genet against 
Federalists, 258 ; denoimces execu- 
tion of neutrality proclamation by 
courts, 261 ; wishes war with Eng- 
land, 263; denounces Jay on his 
mission, 268 ; condemns Jay treaty, 
281, 282 ; condemns Jay's thanks- 
giving proclamation, 287 ; denounces 
Jay for criticising France, 289, 290 ; 
gains ground in New York, 292, 294 ; 
attempts to district New York for 
presidential electors, 294, 295 ; car- 
ries the State, 295 ; nominates Clin- 
ton for governor, 297. 

De Witt, Colonel, on committee to 
prepare plan of government for New 
York, 58. 

Dickinson, John, one of " aristocracy 
of letters," 10 ; writes petition of 
Congress to the king, 41 ; on se- 
cret committee to correspond with 
friends abroad, 44 ; his influence 
upon the Revolution not malign, 61. 

Diplomacy of the Revolution : First 
committee appointed by Congress, 
44 ; dealings with Bonvouloir, 44 ; 
mission of Deane to France and 
dealings with Beaumarchais, 96-98, 
133-134 ; treaty with France, 107 ; 



INDEX 



333 



dealings with France over Missis- 
sippi navigation, 111, 112 ; dealings 
of Franklin and Lee with Spain, 
114 ; Jay's mission, 115-127 ; Frank- 
lin's mission to France, 134 ; treat- 
ies with France, 135, 136 ; mission 
of Gerard and Luzerne to Congress, 
137-148 ; instructions to Adams and 
other commissioners made to suit 
Luzerne, 141-147 ; treaty of peace, 
149-199 ; Jay becomes secretary of 
foreign affairs, 207 ; proposed aban- 
donment of Mississippi navigation, 
208-211 ; dealings with France, 212- 
213 ; with Algerines, 214 ; negotia- 
tion with England concerning carry- 
ing out of treaty, 214, 215. 

Diplomatic History of the United 
States : Declaration of neutrality, 
256, 257 ; mission of Genet to Amer- 
ica, 257-258 ; Jay's mission to Eng- 
land, 265-281 ; causes, 264-267 ; un- 
decided questions to be settled, 269 ; 
amicable methods of negotiation, 
270 ; signing of treaty, 271 ; com- 
pensation refused for negroes, 273 ; 
surrender of posts gained, 273 ; mu- 
tual compensation for debts and 
damages imder Orders in CouncU, 
274 ; boundaries, 274 ; property 
guarantees, 275 ; commercial agree- 
ments, 275, 276 ; Jay's error as to 
cotton export, 276, 277 ; on contra- 
band and piracy, 277 ; defense of 
treaty, 279 ; ratification, 282. 

" Doctors' Mob," against alleged 
grave-robbing, 227, 228. 

Doniol, M. , on treaty of Aran- 

juez, 130 ; on importance of in- 
structions to peace commissioners, 
147. 

Duane, James, member of " Moot " 
law club, 17 ; on Committee of Fifty- 
one, 26 ; chosen delegate to Conti- 
nental Congress, 29, 30 ; reelected, 
39; counsels delay in declaring in- 
dependence, 49 ; pledges New York 
for independence, but waits instruc- 
tions before voting, 54 ; reports 
draft of Constitution from commit- 
tee, 74 ; prepares case for New York 
concerning disputed boundaries, 94. 

Dublin, University of, creates Adams, 



Franklin, and Jay Doctors of Laws, 
239. 

Duer, William, on committee to pre- 
pare Constitution for New York, 58 ; 
on committee to suppress Tories, 
60,61. 

Dundas, Henry, acquaintance with 
Jay, 280. 

Ellsvobth, Oliyeb, letter of Jay to, 
on treaty with England, 271. 

England, ready for peace in 1782, 149 ; 
policy towards America in negotia- 
tions, 154, 155, 156, 175, 176 ; after 
relief of Gibraltar hopes for better 
terms, 181 ; attempts to get royal- 
ist compensation, 188-193 ; disap- 
pointed at treaty, 197 ; endeavors 
to modify it, 197, 198 ; refuses com- 
mercial concessions, 198 ; holds 
Western posts, 214, 263 ; damages 
American commerce, 263 ; danger 
of war with, 263 ; necessity of peace 
with, 264, 265 ; mission of Jay to, 
265-281 ; attitude toward treaty, 
279, 280 ; Jay's opinion of, 322. 

" Fedkeaust," the, 225 ; share of Jay 
in, 225-227. 

Federalists, in New York oppose Clin- 
ton, 240 ; organization and elements 
of party, 241-242 ; their campaign 
against Clinton in 1792, 244-247; 
carry the State, 247 ; defeated on a 
technicality, 247-249; their anger, 
250-252 ; nominate and elect Jay in 
1795, 284 ; reelect him in 1798, 292 ; 
lose control of legislature, 294 ; de- 
feated in state election, 295 ; urge 
Jay to call legislature to district 
State for electors, 295 ; their dread 
of Democrats, 296 ; urge Jay to ac- 
cept renomination, 297 ; regret his 
retirement, 302 ; unfit nomination 
of, opposed by Jay, 310 ; celebrate 
overthrow of Bonaparte, 312 ; their 
attitude toward democracy, 323- 
325. 

Fisheries, a share in, wished by 
France, 109 ; their possession by 
America opposed by France, 138 ; 
demanded by New England, 143 ; 
removed from ultimatum by Lu- 



334 



INDEX 



zeme's influence, 143 ; letter of 
Marbois concerning, 169 ; arguments 
of French against American rights, 
173, 174, 182 ; debate concerning, 
188, 189, 192, 193, 194. 

Fitzherbert, Alleyne, succeeds Gren- 
ville at Paris, 156 ; tells Grantham 
that France is averse to American 
claim to preliminary independence, 
164 ; thinks Eajmeval inspired by 
Vergennes, 167 ; directed to use 
France against American claims, 
192; wishes to send courier for ad- 
vice, 194 ; on Vergennes' effort to at- 
tract American trade, 198 ; on Jay's 
credit for successful treaty, 200. 

Fitzmaurice, Lord Edmond, describes 
Rayneval's interview with ministry, 
174 ; explains Shelbume's motives 
in giving new commission, 176. 

Flanders, Henry, on Jay's refusal to 
appoint or remove for political rea- 
sons, 300. 

Florida, Blanca, Covmt, opposed to 
French treaty with United States, 
108 ; tries to deceive England, 108 ; 
described by Montmorin, 116 ; re- 
fuses to receive Jay publicly, 117 ; 
says only obstacle to a treaty is 
Mississippi navigation claim, 117 ; 
allows Jay to repeat conversation 
to Montmorin, 117 ; refuses to cash 
American drafts without some re- 
turn, 119 ; invites Jay to dinner 
" as a private gentleman," 126 ; 
makes no objection to Jay's leaving 
Spain, 127; his position regarding 
peace negotiations, 161 ; on De 
Grasse's cormnunication, 172 ; un- 
derstood to yield Spanish claims to 
Western territory, 208. 

Forbes, , charged with conspiring 

against life of Washington, 60. 

Fox, Charles James, on French policy 
in making peace, 151 ; resigns office, 
154 ; willing to admit independence 
as basis of treaty, 156 ; instructs 
Hartley to insist on advantages for 
British trade, 197 ; doubts author- 
ity of Congress, 198. 

France, alliance of United States with, 

107 ; desires accession of Spain, 107, 

108 ; induces Spain to sign treaty 



of Aranjuez, 109, 110 ; efforts of, 
to prevent American claims from 
alienating Spain, 110-113; redeems 
drafts on Jay, 120 ; tries to induce 
Spain to aid America, 125 ; discus- 
sion of France's policy in the war, 
129-146 ; bound to Spain without 
knowledge of United States, 129, 
130 ; popular feeling in, does not 
influence government, 130-131 ; its 
purpose to crush England, 132-134 ; 
gives secret assistance, 134 ; led by 
Burgoyne's surrender to make open 
treaty, 135 ; what it really guaran- 
tees, 136, 137 ; its policy to prevent 
States from being too large, 137 ; 
opposes American claims to Missis- 
sippi and fisheries, 138 ; attempts 
to dictate American foreign policy, 
139 ; its success, 140-148 ; continues 
to pose as protector of American 
interests, 146 ; ready for peace in 
1782, 149 ; refuses to be separated 
from Spain in treaty, 150, 151 ; ad- 
vises commissioners not to quibble 
over Oswald's commission, 159, 160 ; 
opposes American claims to Western 
lands, 166, 167, 174, 182 ; to fisher- 
ies, 169-171, 173, 174, 182; upholds 
claim of Tories for compensation, 
190, 191 ; astonished at treaty, 196 ; 
irritated but easily appeased, 196, 
197 ; attempts to form commercial 
treaty vrith, 213 ; X Y Z affair with, 
292. 

Francis, Samuel, meeting of New 
York citizens at his house, 24. 

Franklin, Benjamin, on committee of 
Congress to correspond with friends 
abroad, 44 ; appointed minister to 
Spain, 114 ; negotiates with Aran- 
da, 114 ; helps Jay out of financial 
difficulties, 119, 120 ; letters of Jay 
to, describing situation in Spain, 
121, 124 ; urges Jay to take his place 
at Paris, 126 ; tries to resign, 127 ; 
made peace commissioner, 127 ; 
summons Jay to help in negotia- 
tions, 127 ; his arrival and life in 
France, 134 ; his popularity, 136 ; 
tells Congress of Vergennes' dis- 
like of Adams, 144 ; added to peace 
commission to counteract Adams, 



INDEX 



335 



147 ; begins negotiations with Os- 
wald and GrenviUe, 149 ; his help- 
ful suggestions, 150 ; suggests ces- 
sion of Canada, 151 ; friendship of 
Jay for, 152 ; consults with Jay, 
Vergennes, and Aranda, 153 ; sug- 
gests articles as basis for negoti- 
ation, 155 ; withdraws remarks as 
to possibility of loyalist compensa- 
tion, 155 ; satisfied with Oswald's 
commission, 157 ; consults with 
Vergennes, 159 ; his theory of Ver- 
gennes' motives, 161 ; thinks Jay 
takes too technical an attitude, 162, 
164 ; feels hampered by instructions, 
164 ; iU with gout, 165 ; does not 
attach importance to Marbois let- 
ter, 169 ; not worried by Rayneval's 
secret journey, 172 ; not told of 
Vaughan's journey, 172 ; delays 
negotiations through illness, 179 ; 
refuses to yield Tory comj^nsation, 
180 ; condition described by Ad- 
ams, 183 ; continues to hold faith 
in French court, 184 ; not irritated 
at Jay's independent action, 184 ; 
his regard for Jay, 184, 185 ; his 
attitude upheld by biographers, 185 ; 
explanations of his conduct, 186 ; 
yields to Adams and Jay in violat- 
ing instructions, 187 ; willing to 
share responsibility, 188 ; agrees to 
payment of British debts, 188 ; co- 
incides with Jay and Adams, 191 ; 
especially emphatic in rejecting 
Tory claims, 194 ; pacifies Ver- 
gennes by a diplomatic letter, 196 ; 
suggests an article protecting non- 
combatants in case of future war, 
197 ; Adams's view of his part in 
treaty, 200 ; amuses Mrs. Jay, 201, 
202 ; tells Congress of Jay's return, 
205 ; urges Jay to sign name to an 
Address to People, 229 ; receives 
degree of Doctor of Laws from 
Dublin, 239. 
French Revolution, differs from 
American Revolution in being theo- 
retical rather than practical, 33 ; 
anniversary of beginning, celebrated 
in New York, 252 ; arouses sympa- 
thy among anti-Federalists, 256, 
263 ; Jay's opinion of, 289. 



Gage, General Thomas, present at 
Jay's graduation, 12. 

Galloway, Joseph, introduces plan for 
reconciliation, 35. 

Gansevoort, , letter of Jay to, on 

New York Constitution, 81. 

Gardoqui, Don Diego de, appointed 
envoy to United States to settle 
Mississippi question, 208 ; opposes 
free navigation, but offers a liberal 
commercial treaty, 209. 

Gates, Horatio, his pass to Bayards 
not honored by Jay, 66 ; fails to get 
Jay's opinion concerning Saratoga 
convention, 319. 

Genet, Ekimond, his behavior upon 
arrival in America, 257 ; testimony 
of Jay and King against, 258. 

George III, thinks independence of 
colonies a fatal blow to England, 
137 ; his interview with Jay relative 
to treaty, 271. 

Georgia, State of, Chisholm v., 252- 
255. 

Gerard, Conrad Alexandre, urges Con- 
gress to modify claims in order to 
get Spanish alliance. 111 ; opposes 
large boundaries. 111 ; succeeds 
in persuading Jay of hopeless- 
ness of securing Mississippi nav- 
igation, 112 ; praises Jay to Ver- 
gennes, 112 ; urges Congress to 
treat with Spain, 113 ; dislikes Lee, 
113; pleased at choice of Jay as 
minister to Madrid, 113; returns 
with Jay to France, 115 ; quarrels 
with Jay, 115 ; letter of Vergennes 
to, on American alliance, 135 ; in- 
structed by Vergennes to oppose 
American claims, 137, 138 ; directed 
to bribe and flatter, 139 ; subsidizes 
writers, 140, 141 ; instructed to dis- 
suade Congress from conquering 
Canada, 151, 152. 

Gerry, Elbridge, letter of Hawley to, 
on Tories, 63 ; in Congress tries 
to get fisheries named in peace ulti- 
matum, 143 ; moves appointment of 
Jay as foreign secretary, 205 ; visit 
of Jay to, 239. 

Grand, M. , letter of Jay to, on 

one-man power, 221. 

Grantham, Lord, in Shelbume's min- 



336 



INDEX 



iatry, 154 ; report of Pitzherbert to, 
on French attitude toward America, 
164 ; notes Rayneval's opposition to 
American claims, 174. 

Grenville, Lord (William Wjmdham), 
negotiates treaty with Jay, 270 ; re- 
fuses compensation for negroes, 273 ; 
his attitude, 276 ; said by English- 
men to have been duped, 279 ; his 
esteem for Jay, 280. 

Grenville, Thomas, his character, 149 ; 
begins unofiBcial negotiations with 
Franklin, 149, 150 ; agrees to treat- 
ing with America and France sepa- 
rately, 150 ; resigns, 156. 

Griffin, Judge, in case of Ware's Ex- 
ecutors V. Hylton, 255. 

Hale, Edwabd E., criticises Jay's 
course in negotiations, 185, 186. 

Hale, Major, his appointment forced 
on Jay by council, 291, 292. 

Hamilton, Alexander, more precocious 
than Jay, 19 ; less typical of Amer- 
ica, 22 ; urges Jay to be a candidate 
for New York Assembly, 47 ; tells 
him of his popularity in New Eng- 
land after treaty of peace, 199 ; op- 
posed to anti-Tory legislation, 206, 
242 ; urges in vain Jay's appoint- 
ment to Federal Convention, 225; 
share in the "Federalist," 225; in 
the New York ratifying convention, 
231, 233 ; succeeds in getting tres- 
pass act declared void, 242 ; his 
financial schemes denounced by 
states'-rights men, 244 ; writes to 
Jay on policy of neutrality, 256 ; 
Washington's first choice for Eng- 
lish mission, 265 ; aware of opposi- 
tion, suggests Jay, 265 ; letter of 
Jay to, on motives in making treaty, 
270, 271 ; mobbed in defending Jay 
treaty, 282 ; urges Jay to call legis- 
lature to district State for presiden- 
tial electors, 295 ; his affection for 
Jay, 317. 

Hammond, George, his imsuital>ility 
for negotiating a treaty, 265. 

Hammond, J. D., criticises legislative 
compliment to Jay, 288; gives an- 
ecdote of Jay's defeat by Council of 
Appointment, 291, 292; suggests 



cases of removals for political rea- 
sons by Jay, 300. 

Harper, R. G., makes extravagant as- 
sertions as to Jay's position regard- 
ing the French Revolution, 288. 

Harrison, Benjamin, on committee of 
Congress to correspond with friends 
abroad, 44. 

Hartley, David, replaces Oswald with 
instructions to secure amendments 
to treaty, 197 ; unable to effect any- 
thing, 197 ; writes friendly letter to 
Jay, 204. 

Harvard College, gives Jay degree of 
Doctor of Laws, 238. 

Hawley, Major Joseph, advocates ex- 
termination of Tories, 63. 

Haybum's case, involves unconstitu- 
tionality of a federal law, 240. 

Heard, Col. Nathaniel, disarms sus- 
pected Tories, 45. 

Heath, General, his private agents, 
57. 

Henfield, Gideon, indicted for viola- 
tion of neutrality laws, 259. 

Henry, Patrick, urges proportional 
voting in Congress, 34 ; favors delay 
in changing form of colonial govern- 
ment, 49 ; his oratory in case of 
Ware's Executors v. Hylton, 255. 

Hobart, John Sloss, on committee 
to prepare plan of government for 
New York, 58 ; letter of Jay to, on 
Sinclair's sheep, 280. 

Hodges, Captain, requested to pimish 
a Tory for disaffection, 62. 

Howe, Lord, makes efforts at concili- 
ation, 135 ; relieves Gibraltar, 181 ; 
wins victory of First of June, 269. 

Himtington, Countess of, consiUts 
Jay about the conversion of the 
Indians, 203. 

Huntington, Governor, requests Jay 
for irregular extradition, 284. 

Hylton, Ware's Executors v., 255. 

Inbefekdence, slow growth of desire 
for, 21 ; repudiated by New York, 
28 ; by Jay in Continental Congress, 
31, 42, 43 ; opposed by New York 
Congress, 48, 50 ; importance of 
delay in adopting, 51, 62. 

Iredell, James, on Continental Con- 



INDEX 



337 



gress, 32 ; tries case of Ware's Ex- 
ecutors V. Hylton, 255; impressed 
by Patrick Henry, 255. 

Jay ancestry, 1-4 ; French descent 
of the Jays, 1 ; of the Bayards, 1 ; 
Dutch connections, 1, 2 ; traits 
of, 6. 

Jay, Ann, in her father's family after 
his retirement, 304 ; her later life, 
304. 

Jay, Augustus, son of Pierre Jay, set- 
tles in New York, 1 ; succeeds as 
merchant, 2. 

Jay, Eve, supported by her brother 
John after her husband's death, 
104 ; her gratitude, 105. 

Jay, Frederick, member of Committee 
of Observation, 39 ; describes his 
father's alarm at Burgoyne's ad- 
vance, 84 ; supports his sister, Mrs. 
Munro, 105 ; describes outrages of 
"Delancey Boys," 121; asks his 
brother to recommend him to Gar- 
doqui to sell a damaged cargo, 216. 

Jay, James, his career, 2, note ; let- 
ters of his father to, 2, 3 ; similar 
tastes to his brother John's, 8 ; sup- 
ports his sister, Mrs. Munro, 105. 

Jay, John, ancestry, 1-6 ; inher- 
ited traits, 6, 7 ; childhood, 7 ; 
education and school life, 7, 8; 
learns French at New Rochelle, 8 ; 
enters King's College, 8 ; his life 
there imder Dr. Johnson, 8, 9, 10 ; 
studies English, 10 ; determines on 
law as a profession, 10, 11 ; refuses 
to inform against unruly students 
and is punished, 12 ; enters law 
office of Eissam, 12 ; his laborious 
duties, 13 ; friendly with Eissam, 
14, 15 ; hopes to gain practice 
through Stamp Act repeal, 14 ; gains 
a horse through tact, 15 ; admitted 
to bar, 16 ; has trivial practice, 16 ; 
opposes Gouvemeur Morris in con- 
tested election case, 16 ; continued 
relations with Kissam, 17, 18 ; joins 
" The Moot " legal club, 17 ; his as- 
sociates, 17, 18 ; increasing practice, 
18; secretary of New York bound- 
ary commission, 19 ; marries Sarah 
Livingston, 19 ; his standing and 



character in 1774, 19 ; Whig con- 
nections, 20. 

Whig Leader in New York. 13^)1- 
cal man of the Revolution, 21, 22; 
on Correspondence Committee of 
New York, 24; on committee to 
draft answer to Boston town meet- 
ing, 26 ; urges a Colonial Congress, 
26 ; wishes it to consider not merely 
Boston's rights, but those of all the 
colonies, 26, 27 ; on committee ad- 
vocating leaving non-importation to 
Congress, 28, 29 ; on other commit- 
tees, 29 ; refuses to accede to irreg- 
ular elections, 29 ; elected delegate 
to Continental Congress, 30. 

Member of Continental Congress. 
His journey to Philadelphia, 31 ; 
objects to opening proceedings with 
prayer, 32 ; on committee to state 
the rights of the colonies, 33 ; sug- 
gests necessity of recourse to law 
of nature, 33 ; opposes Henry's the- 
ory of the destruction of the colo- 
nies' legal existence, 34 ; advocates 
non-intercourse, 34, 35 ; favors Gal- 
loway's plan of union, 35 ; on com- 
mittee to draft address to people of 
Great Britain and British America, 
35 ; writes draft, its character, 36 ; 
on returning to New York, elected 
to Committee of Inspection, 37 ; 
also on committee to relieve Boston, 
37 ; elected to Provincial Conven- 
tion, 38 ; chosen again to Congress, 
39 ; on Committee of Observation, 
39 ; writes letter to Lord Mayor of 
London, 40 ; in Congress drafts ad- 
dress to Canada, 40 ; on committee 
to explain causes of taking arms, 
41; advocates "Olive Branch "pe- 
tition, 41 ; writes address to people 
of Ireland and Jamaica, 41 ; dis- 
suades, for Congress, New Jersey 
Assembly from petitioning, 42 ; re- 
sents charge of desiring independ- 
ence, 42, 43 ; recommends to Mas- 
sachusetts to choose a new Assem- 
bly, 43 ; on other committees, 43 ; 
opposes closing custom-houses, 43; 
on committee to correspond with 
foreign friends, 44 ; confers with 
French emissary, 44; corresponds 



338 



INDEX 



with Deane, 44; on committee to 
discipline Tories of Queen's County, 
New Tork, 44 ; on numerous mili- 
tary committees, 45 ; describes ex- 
cursion of Congress, 45, 46 ; laments 
enforced attendance at Christmas 
time, 46 ; objects to destruction of 
Rivington's press, 46 ; advises New 
York convention to levy taxes as a 
precedent, 47 ; appointed colonel of 
New York militia, 47; urged by 
Hamilton to be candidate to con- 
vention, 47 ; elected to New York 
Provincial Congress, 48. 
Leaderin New York. Leaves Con- 
tinental Congress, 48 ; on commit- 
tees, 48 ; leads New York Congress 
to oppose independence, 48 ; wishes 
a new Constitution, 49, 50 ; repre- 
sents the merchant class, 50 ; im- 
portance of his attitude in prevent- 
ing hasty action, 51 ; approves De- 
claration of Independence, 53 ; hopes 
for good effects from it upon Euro- 
pean nations, 54 ; condemns, for con- 
vention, the action of Congress in 
raising troops in New York, 55 ; on 
secret military committee, 55, 56; 
communicates with generals, 56 ; 
asked by Schuyler to defend him, 
57 ; urges drastic military methods, 
57 ; chairman of committee to re- 
port a new form of government, 58 ; 
moves in convention to declare To- 
ries guilty of treason, 59 ; on com- 
mittee to examine suspected persons, 
60; kept in New York by Tryon's 
activity, 60 ; on secret committee to 
deal with Tories, 61 ; his thorough 
action, 61-62; execrated by loyal- 
ists, 63 ; probably saves them by 
his coolness from a worse fate, 63 ; 
his treatment of Peter Van Schaack, 
64 ; sends money to another impris- 
oned Tory, 64 ; his dealings with 
other Tories, 65, 66 ; writes address 
urging continued resistance after 
' loss of New York, 66, 67. 

Framer of New York Constitution. 
Retires to country to prepare draft, 
68; said by Adams to have gained 
his ideas from Adams's letter to 
Wythe, 69 ; error of this view, 69 ; 



discussion of the Constitution, 70- 
78; introduces property qualifica- 
tions, 71 ; later regrets having in- 
troduced council of appointment, 
72 ; moves prohibition of courts 
other than of common law, 73, 78 ; 
moves vote by ballot as soon as 
practicable, 75 ; wishes provisions 
against Catholics, 76 ; includes them 
in naturalization clause, 77 ; his ob- 
jects not religious but political, 77 ; 
moves modification of attainder and 
Indian clauses, 78 ; absent from 
adoption of Constitution to attend 
fimeral of mother, 78 ; on commit- 
tee to organize new government, 
79 ; on council of safety until meet- 
ing of legislature, 79 ; chief justice 
pro tempore, 79 ; prepares an act of 
grace, 79 ; regrets omission of vari- 
ous matters, 80 ; asks Morris to 
criticise the Constitution, 80 ; fears 
it will not be successful except in 
strong hands, 81 ; services on Com- 
mittee of Safety, 81, 82 ; refuses to 
be candidate for governor, 82 ; let- 
ters of Schuyler and others to, dur- 
ing Burgoyne's invasion, 83, 84 ; 
suggests holding legislature at Al- 
bany, 84 ; confers with Washington 
concerning Hudson forts, 85. 

Chief Justice of New York. De- 
scribes the court as a continuation 
of the colonial court, 85, 86 ; ad- 
dress to grand jury on new govern- 
ment, 86 ; has very little business, 
87 ; his dislike of trying criminals, 
87 ; describes hardships of people, 
87 ; retires for vacation at farm, 88 ; 
discusses invasion of Canada with 
Washington, 88 ; writes paper op- 
posing seizures by military, 89 ; as 
member of Council of Revision, 
brings about vetoing of anti-Tory 
laws, 89-92 ; his reasons, 90, 91 ; 
breadth and liberality of his opin- 
ions, 92, 93 ; comments on Allen's 
pamphlet vindicating Vermont, 95 ; 
sent to Congress to urge settlement 
of question, 96. 

President of Continental Congress. 
Defends Deane from Lee's attacks, 
98 ; elected president to succeedLau- 



INDEX 



339 



rens, 99 ; congratulated by his wife, 
99 ; his reply, 99 ; as president, calls 
upon States to furnish funds, 100 ; his 
arguments not economically sound, 
101 ; his optimism, 101 ; complains 
of intrigue in Congress, 102 ; suc- 
ceeds in inducing New York and 
other claimants to submit Vermont 
case to arbitration, 102 ; unable to 
enforce settlement of dispute, 103; 
resigns chief justiceship owing to 
family needs, 103 ; explains absence 
of ambition, 104 ; his home troubles, 
104, 105 ; real desire for retirement 
shown in letters to his wife, 105, 
106 ; consults with Gerard on acqui- 
sition of Spain as ally. 111 ; refuses 
to commit himself on boundary 
question. 111 ; does not desire Mis- 
sissippi vaUey, 112 ; praised by Ge- 
rard, 112 ; later changes opinion, 
113. 

Minister to Spain. Receives votes 
of a minority of States for minister 
to treat with England, 113 ; ap- 
pointed minister to Spain, 113; his 
selection gives satisfaction to Ge- 
rard, 113 ; accepts appointment and 
receives instructions, 114; his 
voyage, 115 ; has slight quarrel 
with Gerard, 115 ; lends money to 
Americans at Martinique, 115 ; ar- 
rives at Cadiz, his disagreeable situ- 
ation, 116 ; sends Carmichael to 
Madrid, 116 ; entertained by Count 
O'Reilly, 116 ; negotiates with Flo- 
rida Blanca, 117 ; avoids suspicion of 
duplicity, 117 ; his credit damaged 
by drafts from Congress, 118 ; ac- 
cepts bills personally, helped by 
Franklin, 119, 120 ; gets a small 
loan, 119, 120 ; obliged to suffer 
some bills to go to protest, 120 ; de- 
scribes bad effect of news of Charles- 
ton, 120 ; without letters for months, 
120 ; receives bad news from fam- 
ily, 121 ; his pride and isolation, 
121 ; complained of for stiffness by 
d'Aranda, 122 ; his high opinion of 
d'Aranda, 122 ; occasional recrea- 
tion, 122 ; receives new and weaker 
instructions, 123 ; after delay, asked 
to draft treaty of alliance, 123; 



continues waiting fruitlessly two 
years, 124; distrusts Russian and 
imperial offer of mediation, 124, 125 ; 
unsuccessfuUy sounds Montmorin 
as to French assistance in getting a 
treaty with Spain, 125; stiU has 
full confidence in France, 125 ; told 
by Vergennes that France can do 
no more, 126 ; begins to lose faith 
in France, 126; invited to dinner 
by Blanca, 126 ; urged by Franklin 
to replace him at Paris, 126 ; joined 
by Congress with others on peace 
commission, 127 ; summoned to aid 
him by Franklin, 127 ; leaves Spain, 
127 ; his journey to Paris, 128. 
Member of Peace Commission. 
Discriminates between French peo- 
ple and government, 130 ; suggested 
by Luzerne as member of commis- 
sion, 147 ; his appointment con- 
sidered advantageous for France, 
148 ; reaches Paris, 152 ; regard for 
Franklin, 152 ; pleased with French 
courtesy, 152 ; enters vigorously 
upon business, 153 ; his illness, 153 ; 
described by Oswald, 157 ; com- 
ments on Oswald's commission, 158 ; 
refuses to separate America from 
France in negotiation, 158, 159 ; de- 
scribed by Oswald as bitter toward 
England, 159 ; in consultation with 
Franklin and Vergennes, objects to 
form of Oswald's commission, 159; 
thinks Vergennes wishes to post- 
pone accommodation in interest of 
Spain, 160 ; correctness of his judg- 
ment regarding Spain, 161 ; not 
sympathized with by Franklin, 162 ; 
insists to Oswald on necessity of 
England's treating with United 
States as independent, 162, 163, 164 ; 
rejects Franklin's arguments, 164, 
165 ; renews negotiations with Spain 
through Aranda, 165 ; discusses 
Western boundaries, 166 ; surprised 
at suggestions of Rayneval, 167 ; 
considers restriction of American 
boundaries due to Spanish influence, 
167 ; receives Marbois' letter through 
English hands, 169 ; suspects dan- 
ger to American interests from 
Rayneval's mission to England, 171, 



(^^x 



340 



INDEX 



172; urges Vaughan, without con- 
sulting Franklin, to counteract it, 
172; instructs him to urge Shel- 
bume to conciliate America rather 
than France, 175 ; success of Jay's 
prompt action, 178 ; rejoices at new 
commission, 178; refuses to treat 
with Spain except on equal footing, 
179 ; refuses to consider France's 
engagements to Spain, 179 ; without 
consulting Yergennes, submits draft 
of treaty to Oswald, 179 ; its terms 
as suggested by him, 180 ; again dis- 
putes with Rayneval the fisheries 
question, 182 ; summons Adams, 
182; his position regarding France 
approved by Adams, 182, 183 ; aided 
by Adams in drawing up report to 
Congress, 183 ; continues, notwith- 
standing differing opinions, to be on 
friendly terms with Franklin, 184 ; 
accused of bad judgment by Frank- 
lin's biographers, 185 ; sustained by 
Adams and eventually Franklin in 
continuing negotiations without con- 
sulting Yergennes, 187 ; agrees to 
payment of British debts, 188 ; joins 
Adams in objecting to separation 
of English and American fisheries, 
189 ; continues to negotiate, 189 ; 
insists on accuracy in map of pro- 
posed boundaries, 189 ; eager to 
conclude treaty, 190 ; urged by Os- 
wald to go to England, 190; re- 
fuses to go, 191 ; asks Strachey if 
Tory compensation is an ultimatum, 
193 ; agrees with colleagues in re- 
jecting it, 194 ; prefers English 
trade to French, 198 ; deserves prin- 
cipal credit for success of the ne- 
gotiations, 199; praised by Adams, 
200; French view of his position, 
200 ; leaving family at Passy, goes 
to England for health, 201 ; letters 
of his wife, 201 ; humorous corre- 
spondence with Franklin, 202 ; re- 
fuses to associate with American 
Tories in London, 202, 203 ; refuses 
offers of appointments to French 
and English courts, 203 ; urges ap- 
pointment of Adams as minister to 
England, 203 ; returns to America, 
204 ; friendly letter to, from Hart- 



ley, 204 ; welcomed in New York, 
205 ; wishes to retire from public 
life, 205. 

Secretary for Foreign Affairs. Ap- 
pointed foreign secretary by Con- 
gress, 205 ; reluctantly accepts, 205, 
206 ; refuses to be a candidate for 
governor of New York, 206 ; disap- 
proves of New York anti-Tory laws, 

206 ; organizes foreign department, 
207 ; increases its importance with 
regard to Congress and the States, 

207 ; hampered by insufficient ac- 
commodations, 208 ; intrusted by 
Congress with negotiation vrith Gar- 
doqui regarding Mississippi naviga- 
tion, 208 ; willing to sacrifice Mis- 
sissippi navigation for thirty years 
in return for a commercial treaty, 
209 ; fails to appreciate situation of 
Western settlements, 209, 210; at- 
tempt made by southern delegates 
to revoke his commission, 210 ; re- 
ports an arrangement suspending 
the right to navigation, 210 ; his 
powers finally revoked, 211 ; admits 
his error of judgment, 211 ; favors 
compensation to Beaumarchais, 211 ; 
opposes New England laws discrimi- 
nating against French vessels, 212 ; 
advocates a convention to regulate 
rights of consuls, 212 ; urges trade 
reciprocity with France, and free 
trade in general, 213 ; recommends 
a navy to operate against Alge- 
rines, 214 ; reports violations of 
treaty of peace by the States, 215 ; 
writes circular letter asking States 
to repeal laws in contravention of 
treaty, 215; makes other sugges- 
tions, 215 ; authorized by Congress 
to open mails, 216 ; refuses to use 
his influence to secure appointments 
for friends, 216; agent for New 
York to settle boundary with Massa- 
chusetts, 217 ; consults vrith com- 
mittee of Congress on territorial 
government, 217 ; trustee of New 
York Emancipation Society, 217 ; 
connection with Episcopalian Gen- 
eral Convention, 217 ; social duties, 
218, 219 ; admits, in 1788, the break- 
down of foreign credit of Confedera- 



INDEX 



341 



tion, 219, 220 ; fears anarchy or des- 
potism, 220; points out defects of 
the government, 221 ; urges neces- 
sity of centralization, 222, 233 ; sug> 
gests reforms of executive and legis- 
lative, 223 ; doubts constitutionality 
of Federal Convention, 224 ; defeated 
as delegate in New York Senate, 
225 ; participates in writing " Fed- 
eralist," 225 ; summary of his ar- 
guments, 225-227 ; on necessity of 
Constitution for foreign relations, 
226 ; on the treaty power, 227 ; hurt 
while trying to quell "Doctors' 
Riot," 228 ; elected to ratifying con- 
vention, 228 ; publishes address in 
favor of Constitution, 229 ; his au- 
thorship known, 229 ; urged by 
Franklin to sign it, 229 ; his argu- 
ments, 229, 230 ; analyzes elements 
of opposition in New York conven- 
tion, 230 ; his share in debates, 231 ; 
moves ratification with recommen- 
dation of amendments, 232 ; directed 
to prepare letter calling for a sec- 
ond convention, 233 ; congratulated 
by Washington on his success, 233 ; 
his weight described by Adams, 233 ; 
continues to act as foreign secretary 
until Jefferson's return, 235. 
Chief Justice of the United States. 
Offered choice of federal offices by 
Washington, 235 ; prefers chief jus- 
ticeship, 236 ; his influence on the 
office, 237 ; organizes court, 237 ; on 
New York and New England circuit, 
237 ; his first charge to grand jury, 
237 ; visits Boston, 238 ; receives 
degree of Doctor of Laws from 
Harvard, 238 ; continues on circuit, 
239 ; removes to Philadelphia, 239 ; 
protests against invalid pension act 
of Congress as unconstitutional, 240 ; 
nominated for governor of New 
York, 240; accepts but takes no 
active part in campaign, 241 ; his 
position as conservative Whig or 
Federalist, 242, 244; attacked for 
his anti-slavery views, 245 ; advo- 
cates gradual emancipation, 246; 
slanders against, 246 ; called an aris- 
tocrat, 247 ; receives majority of 
votes for governor, 247 ; defeated 



on a technicality, 249 ; cool during 
campaign and after result, 249, 250 ; 
receives public testimonials from 
Federalists, 251, 252; asserts the 
suability of a State, and denies State 
sovereignty in opinion of Chisobn 
V. Georgia, 253, 254 ; importance of 
this decision, 254 ; hears British 
debts case in 1793, 255; describes 
Patrick Henry, 255; suggests, in 
answer to Hamilton, a proclamation 
of neutrality between England and 
France, 256; publishes statement 
concerning Genet's threat to appeal 
from the President to the people, 
258 ; charges grand jury in Virginia 
to execute neutrality proclamation 
as law, 259 ; importance of this 
declaration, 260, 261 ; assailed by 
Democrats, 261 ; gives decision an- 
nulling French prize courts in the 
United States, 262. 
Negotiator of Jay Treaty. Pro. 
posed as special envoy by Hamilton, 
265 ; nomination confirmed, 266 ; 
causes for opposition to him, 266 ; 
his opinions on situation, 266 ; 
knows that the person negotiating 
treaty with England will ruin his 
career, 267 ; yet accepts appoint- 
ment, 268 ; his strong sense of duty, 
268 ; voyage, 268, 269 ; attacked on 
his departure, 268 ; received by 
English ministers, 269 ; suggests to 
Grenville informal method of nego- 
tiation, 270 ; avows intention to seek 
accommodation, not dispute, 270 ; 
reports satisfactory progress, 270, 
271 ; interview with king, 271 ; 
signs treaty, 271 ; writes that it 
contains the best terms available, 
271 ; waives claim to compensation 
for negroes, 273 ; secures surrender 
of western posts, 273 ; arranges 
settlement of British debts and 
American condemnations, 273, 274 ; 
makes other commercial arrange- 
ments, 276, 277 ; his ignorance of 
importance of cotton export, 276 ; 
fails to obtain article against im- 
pressments, 278 ; real credit of his 
diplomacy, 279 ; makes friends with 
Grenville and many others in Eng- 



342 



INDEX 



land, 280; returns to New York, 
281 ; refuses compensation, 281 ; 
attacked before contents of treaty 
are known, 281 ; popular uproar 
against, after publication, 282 ; re- 
mains unmoved by vituperation, 
283. 

Governor of New York. Nomi- 
nated before return from England, 
284; elected, 284; refuses to omit 
forms in extradition case, 284 ; is- 
sues proclamation to protect against 
yellow fever, 285 ; tries to dissuade 
MifQin from extreme measures in 
Philadelphia, 286; declines invita- 
tion to a "republican entertain- 
ment," 286 ; refuses to leave city 
during epidemic, 286 ; appoints day 
of thanksgiving when it is past, 
287 ; censured for so doing by oppo- 
sition, 287 ; opens legislature with 
a speech, 287, 288 ; writes letter 
defining his attitude toward the 
French Revolution, 289 ; bitterly 
attacked by Thomas Paine, 289; 
his comments, 290 ; refuses to pay 
official compliment to Tanunany 
Society, 290 ; suggests ameliora- 
tions in penal laws, 291 ; refuses to 
pardon offender of good family, 
291 ; moves with legislature to Al- 
bany, 291 ; forced by Council of 
Appointment to nominate Major 
Hale, 291 ; reelected, 292 ; caUs 
special session of legislature to pre- 
pare for defense, 292 ; his habits as 
a slaveholder, 294 ; favors proposed 
amendments to Constitution against 
aliens, 294 ; receives votes in electo- 
ral college for president, 294 ; eulo- 
gizes Washington in message to 
legislature, 294 ; refuses to convene 
legislature after Federalist defeat 
to district State for electors, 296 ; 
urges suppression of partisan feel- 
ing, 297 ; declines renomination, 
297 ; his nominations of Federalists 
rejected by Council of Appointment, 
297 ; has controversy with Council 
as to right of nomination, 298; asks 
legislature to settle question, 298 ; 
asks opinion of judges of Supreme 
Court, 298 ; his principles regarding 



appointment for fitness only, 299, 
300 ; refuses request of Morris to re- 
commend a relative to the President 
for appointment, 300 ; his objections, 
300 ; refuses second appointment aa 
chief justice, 301 ; doubts strength 
of the Supreme Court under the 
Constitution, 301 ; retires, advising 
Federalists to yield to the majority, 
301,302. 

In Retirement. Eager for rest, 
303 ; his estate, 303 ; death of wife, 
303, 304 ; children in his family, 304 ; 
describes his rural life, 304 ; dis- 
cusses farming and sheep-raising, 
305-307 ; v^rites to Wilberf orce favor- 
ing English Reform Bill, 308 ; op- 
poses grant to company of flowage 
as infraction of right of property, 
308 ; on taxation, 308, 309 ; opposes 
extension of slavery, 309 ; avoids 
taking part in politics, 309 ; attends 
to political duties, 309 ; disap- 
proves of war of 1812, but considers 
people bound to support it, 310; 
absence of partisanship, 310; re- 
fuses to support a bad nomination 
of Federalists, 310, 311 ; president 
of Bible Society, 311 ; suffers from 
ill-health, 311 ; unable to celebrate 
overthrow of Bonaparte, 312 ; re- 
vives correspondence with Adams, 
312 ; likes to tell anecdotes of the 
Revolution, 313, 314 ; relations with 
Van Schaack and Benson, 314 ; last 
days, death, and eulogies, 315 ; his 
character based on moral purpose, 

316 ; called a " Roman," 316 ; re- 
ligious nature, 316 ; optimism and 
serenity, 316 ; his warm friendships, 

317 ; bis clearness of mind, 318 ; 
caution and prudence, 318-320 ; on 
Burgoyne's surrender, 319 ; on au- 
thorship of the Farewell Address, 
320; tolerant toward Christians 
but not atheists, 320, 321 ; his inde- 
pendence in political action, 321 ; 
moderateness of his views, 322; 
judicial character, 322, 323 ; not a 
Democrat, 323 ; his statement of 
his position, 324, 325 ; common 
sense and propriety his guides, 325, 
326. 



INDEX 



343 



Characteristics. Inherited traits 
6 ; judgments of, by contemporaries 
and others, 31, 36, 112, 113, 121, 148, 
159, 183, 185, 186, 218, 233, 265, 279, 
281, 288, 315 ; aristocracy, 246, 323 ; 
caution, 15, 103, 191, 290, 318-320 ; 
conservatism, 30, 34, 49, 51, 71 S., 
252, 290, 320 ; coolness, 63, 80, 101, 
249, 283, 316 ; courage, 66, 67, 119, 
172, 178, 228, 280, 321 ; domesticity, 
99, 105, 303-307 ; firmness, 6, 14, 
61, 87, 200 ; friendliness, 17, 64, 112, 
184, 280, 312, 317; gravity, 7,10, 
20 ; honor, 117, 200, 212, 216, 316 ; 
humor, 15, 202 ; impartiality, 63, 
64, 200, 233, 291, 302 ; judicial hab- 
its, 14, 20, 262, 322 ; justice, 65, 87, 
92, 212, 215, 274, 322 ; lack of am- 
bition, 82, 103, 206, 250, 267, 268 ; 
legal ability, 19 ; literary style, 10, 
229 ; manner, 238, 316 ; optimism, 
101, 251, 316 ; personal appearance,, 
208, 218, 238 ; pride, 115, 121, 122,' 
203; religiousness, 287, 311, 320, 
321 ; sense of duty, 63, 268. 

Political Opinions. Appointments 
to office, 287, 299-301 ; baUot, 75 ; 
centralization, 221, 222, 227 ; com- 
mon law, 73 ; Confederation, 219, 
220-224, 226 ; Continental Congress, 
140 ; Constitution of New York, 68, 
70-78, 298 ; Constitution of United 
States, 225-227, 229, 230, 240, 301 ; 
democracy, 324 ; executive, 71, 72, 
78 ; England, policy toward, 34, 41, 

42, 270, 322 ; foreign poUcy, 256 ; 
France, policy of in Revolution, 
125, 126, 152, 159, 160, 167, 172; 
free trade, 213 ; French Revolution, 
289 ; Galloway's plan of union, 35 ; 
independence of colonies, 42, 43, 48, 
53 ; Indians, 78 ; international law, 
259, 262 ; Jay treaty, 271 ; love of 
legal methods, 55, 86, 89, 92, 284, 
296, 308; Mississippi navigation, 
112, 123, 208-211 ; natural rights, 
33, 92, 237 ; non-importation, 41, 

43, 89 ; paper money, 100, 101 ; 
party politics, 310 ; religious lib- 
erty, 76-77 ; rights of colonies, 36, 
40, 41 ; slavery, 80, 245, 246, 273, 
293, 309 ; Spain, policy of, in Revo- 
lution, 125, 160, 161, 179; State 



sovereignty, 223, 253, 254; separa- 
tion of powers, 221 ; suffrage quali- 
fications, 71; taxation, 92, 308; 
Tories, 59, 63, 64, 65, 89, 90, 202, 
203, 242 ; Treaty of Peace, 158, 160, 
162, 175, 178, 187, 199 ; treaty power, 
227; war of 1812, 310; western 
boundaries, 165, 166, 179, 180, 189. 

Jay, Mrs. John, marriage, 19 ; letter 
of Jay to, describing a festival of 
Congress, 45 ; affection of her hus- 
band for, 46 ; describes alarm occa- 
sioned by Burgoyne's advance, 84 ; 
letter of Jay to, accoimting for his 
absence at court, 85 ; correspond- 
ence of Jay with, on his assuming 
presidency of Congress, 99 ; letter of 
Jay to, longing for rest, 105, 106 ; 
accompanies Jay to Spain, 115 ; re- 
mains in Madrid, 121 ; ill during 
journey to France, 128 ; rests in 
Passy, describes her life there, 201 ; 
describes Franklin, 201, 202 ; reply 
of her husband, 201 ; other letters 
of Jay to, 203 ; her social duties as 
wife of foreign secretary, 218 ; let- 
ter of Jay to, on celebration of 
Fourth of July, 232 ; letter of Jay 
to, describing visit to Boston, 239 ; 
letters of Jay to, on New York elec- 
tion, 249, 250 ; describes chagrin of 
Federalists, 250 ; letter of Jay to, 
on Eiuropean situation, 266 ; sepa- 
rated from husband during 1798, 
291 ; death, 303 ; her relations to her 
husband, 303, 304. 

Jay, Nancy, sister of John Jay, 
blinded by small-pox, 7. 

Jay, Peter, father of John Jay, 1 ; 
his descent, 1, 2 ; partner of his 
father, 2 ; alderman of New York, 
2 ; character, 2-3 ; piety, 2 ; letters 
of, to James Jay, 2, 3; political 
opinions, 3, 4 ; complains of restric- 
tions on colonial trade, 4 ; becomes 
a Whig, 5 ; anxious for both miUtary 
success and reconciliation, 5 ; letter 
to his son John, 6 ; pleased with 
Jay's success in school, 7 ; advises 
him to write to Dr. Johnson, 9 ; de- 
scribes his success at college, 10 ; 
approves his purpose to study law, 
11 ; pleased at his apprenticeship to 



344: 



INDEX 



KiBsam, 13 ; induced by his son's 
tact to give him a horse, 15 ; alarmed 
at Burgoyne's advance, 83, 84 ; 
warns Jay to beware of marauders, 
104. 

Jay, Peter Augustus, accompanies Jay 
on mission to England, 268 ; de- 
scribes feeling in New York between 
Federalists and Democrats, 292 ; del- 
egate to New York Constitutional 
Convention, 313. 

Jay, Peter, Jr., brother of John Jay, 
blinded by small-pox, 7. 

Jay, Pierre, Huguenot refugee, founder 
of Jay family, 1. 

Jay, Sarah, 304. 

Jay, William, describes his father's 
impartiality in appointing to office, 
299 ; with his father in retirement, 
304 ; on his father's reading habits, 
309. 

Jefferson, Thomas, praises Jay's ad- 
dress to the people of Great Brit- 
ain, 36 ; letter of John Adams to, 
41 ; on reluctance of colonies to- 
wards independence, 42 ; on Peace 
Commission, 127 ; causes for his ap- 
pointment, 147 ; condemns abandon- 
ment of Mississippi navigation, 209 ; 
letter of Jay to, on relations with 
France, 211 ; urged by Jay to make 
a commercial treaty with France, 
213 ; letter of Madison to, on Jay's 
report on execution of treaty, 215 ; 
letter of Madison to, on " Federal- 
ist," 225; returns from France, 
235 ; on absence of neutrality stip- 
ulations in French treaty, 260. 

Johnson, Dr. Samuel, president of 
King's College, 9 ; his friendship for 
Jay, 9. 

Johnson, Thomas, on committee of 
Congress to correspond with friends 
abroad, 44. 

Jones, John Paul, sends his bust to 
Jay as a mark of affection, 317. 

Jones, Samuel, chief justice, member 
of the " Moot," 18 ; eulogizes Jay 
at time of his death, 315. 

Jones, Thomas, banished from New 
York for disaffection, 60. 

KBtrr, Jaues, on New York conven- 



tion of 1777, 79 ; on the " Federal- 
ist," 225; follows Jay's view of 
neutraUty, 261 ; compliments Jay 
in 1828, 315. 

King, Ruf us, gives favorable opinion 
on votes of disputed counties in New 
York election, 248 ; on result of elec- 
tion, 250 ; joins Jay in publishing 
card against Genet, 258 ; invites Jay 
to celebrate overthrow of Bona- 
parte, 312. 

King's College, studies of Jay in, 8- 
12 ; under Dr. Johnson, 9 ; under 
Dr. Cooper, 11, 12. 

Kissam, Benjamin, takes Jay as ap- 
prentice into his law office, 12 ; his 
friendship for Jay, 14, 17 ; writes 
him letters on business, 14, 15, 16 ; 
clever retort of Jay to, 17 ; member 
of " Moot," 18. 

Kissam, Samuel, letter of Jay to, 18. 

Knox, Henry, letter of Rivington to, 
25. 

Lafayette, Marquis de, gives Jay a 
message from Aranda, 191 ; reports 
conversation with Florida Blanca, 
208 ; letter of Jay to, on boundary 
question, 209 ; letters of Jay to, on 
commercial reciprocity, 213 ; letter 
of Jay to, on Algerine pirates, 214 ; 
correspondence of Jay with, in re- 
tirement, 304. 

Lamb, John, leader of radicals in 
New York, 25 ; distrusts Committee 
of Fifty-one, 28 ; denounces Jay's 
resolutions on Boston Port Bill and 
non-importation, 29. 

Lansdowne, Lord, letter of Jay to, on 
free trade, 213. 

Lansing, James, leaves Federal Con- 
vention in disgust, 225. 

Laurens, Henry, resigns presidency of 
Congress owing to Deane affair, 98, 
99 ; bills drawn on, while in prison 
in England, 118 ; on Peace Commis- 
sion, 127 ; causes for his appoint- 
ment, 147. 

Lawrence, W. B., statement regard- 
ing Marbois letter, 170. 

Lavryers in New York, 13 ; class feel- 
ing, 13 ; practice, 13, 16 ; the 
" Moot " club, 17, 18. 



INDEX 



345 



Lee, Arthur, accuses Deane of cor- 
ruption, 96 ; disliked by Gerard, 
113 ; fails to secure aid in Spain, 
114 ; receives commission as foreign 
minister, 134. 

Legislature, of New York, under Tory 
influence, 22 ; establishes Commit- 
tee of Correspondence, 23 ; in form 
of Provincial Convention elects and 
instructs delegates to Congress, 38, 
39 ; old Assembly dissolves, 39 ; 
applies for soldiers to disarm Tories, 
44 ; arranges to pay delegates, 46 ; 
urged by Jay to impose taxes, 47 ; 
takes steps to frame a constitution, 
48 ; opposes independence, 48, 49 ; 
later approves Declaration of Inde- 
pendence, 53 ; changes its name, 53 ; 
condemns interference of Congress 
with New Tork militia, 55 ; ap- 
points military committees, 55, 56 ; 
passes law and appoints committees 
to suppress Tories, 59, 60, 61, 62; 
issues optimistic address to people, 
66; debates draft of Constitution, 
75-78 ; protests against Quebec Act, 
77 ; adopts Constitution, 78 ; organ- 
izes new government, 79 ; meets 
at EUngstou, 84 ; passes anti-Tory 
and Revolutionary bills, 89, 90, 91 ; 
sends Jay to Congress, 96, 103 ; calls 
convention to ratify Federal Con- 
stitution, 228 ; carried by Federal- 
ists, 287 ; compliments Jay, 288 ; re- 
jects bills to abolish slavery, 288, 
291 ; takes measures of defense 
against France, 292, 293 ; passes 
emancipation act, 293 ; rejects 
proposed amendments to Consti- 
tution, 294 ; harasses Jay, 297 ; re- 
fuses to interpret constitutional 
powers of Council of Appointment, 
298; calls a convention to decide, 
298. 

Lewis, Francis, radical leader in New 
Tork, 25 ; refuses to serve on con- 
servative committee, 28 ; urged by 
Hamilton to frustrate Tory scheme, 
47. 

"Liberty Boys," empty tea in ocean, 
23 ; promise support to Boston, 23 ; 
opposed by conservatives, 24, 26 ; 
agree on compromise, 29 ; their ex- 



travagance checked by merchants, 
50,51. 

Lincoln, General Benjamin, visit of 
Jay to, 239. 

Livingston, Brockholst, goes with Jay 
to Spain, 115 ; accompanies him to 
bull-fight, 122. 

Livingston, Edward, admitted to 
practice in Supreme Court, 237. 

Livingston, H. B., letter to Jay on 
Burgoyne's dealings with Vermont, 
95. 

Livingston, Philip, chosen delegate to 
Continental Congress, 29, 30 ; urged 
by Hamilton to frustrate Tory 
scheme, 47. 

Livingston, Robert R., forms partner- 
ship with Jay, 16 ; member of 
"Moot," 17 ; letter of Jay to, on a 
new government, 49 ; his private 
agents in the war, 57 ; on commit- 
tee to prepare new Constitution for 
New York, 58 ; on secret commit- 
tee to examine Tories, 60 ; ap- 
iwinted chancellor of New York, 
79 ; letter of Jay to on depreciation 
of money, 100 ; elected secretary 
for foreign affairs through Lu- 
zerne's influence, 141 ; letter of 
Franklin to, on Marbois letter, 169 ; 
letters of Jay to, on Vaughan's 
mission, 172, 178 ; letter of Frank- 
lin to, on negotiations, 184 ; of 
Adams on the same, 191 ; resigns 
office of foreign secretary, 205 ; 
named for governor against Clin- 
ton, 206 ; abandons Federalists, 
246; beaten by Jay for governor, 
292. 

Livingston, Sarah. See Jay, Mrs. 
John. 

Livingston, William, one of " aristo- 
cracy of letters," 10; member of 
"Moot," 18 ; father-in-law of Jay, 
19 ; meets Jay on way to Congress, 
31 ; requests him to write address 
to people of Ireland and Jamaica, 
41 ; on committee with Jay, 44 ; 
unable to bid Mrs. Jay farewell on 
voyage to Spain, 115. 

Lloyd, James, letter of Adams to, on 
early Federalists, 233. 

Lockyier, Captain, prevented by Vigi- 



\ 



316 



INDEX 



lance Committee from landing tea, 
23. 

Lodge, Henry Cabot, criticises Jay's 
action in negotiations, 185. 

Loughborough, Lord Chancellor, his 
friendship with Jay, 280. 

Louis XVI., disapproves of American 
Revolution, 132 ; persuaded reluc- 
tantly to aid the United States, 134. 

Low, Isaac, on Revolutionary com- 
mittees in New York, 26, 28 ; chosen 
delegate to Continental Congress, 
29, 30 ; declines election to second 
Congress and turns royalist, 39. 

Lowell, John, letter of Jay to, on need 
of national government, 222. 

Ludlow, Judge, continues to hold a 
Tory Supreme Court in New York 
under British protection, 87 ; meets 
Jay in London after peace, 202. 

Luzerne, Count de la, succeeds Ge- 
rard, 119 ; persuades Congress to 
instruct Jay to abandon Mississippi 
navigation, 123; persuades Con- 
gress to keep Jay in Spain, 127; 
directed to encourage Congress to 
confide in Spain, 138 ; instructed to 
oppose American claims to fisher- 
ies, 138 ; suggests that France and 
England guarantee each other's 
fisheries, 138 ; directed to bribe 
American writers, 139 ; gains influ- 
ence in Congress, 141 ; succeeds in 
preventing Congi-ess from instruct- 
ing Adams to demand Mississippi as 
boundary, 141, 142 ; succeeds in 
keeping fisheries out of the peace 
instructions, 143 ; tries to under- 
mine confidence of Congress in 
Adams, 144 ; insists that Adams be 
instructed to follow French advice, 
145 ; his success in swaying Con- 
gress, 145, 146 ; disclaims any self- 
ish interests for France, 146 ; grati 
fled by appointment of Jay on com 
mission, 147 ; letters of Vergennes 
to, on Oswald's commission, 160 
on western boundaries, 167 ; argues 
against Mississippi boimdary, 167 
counteracts reports that France and 
Spain wish to continue war for their 
own interests, 171 ; letter of Ver- 
gennes to, on negotiations, 195 ; 



on the fisheries and boundaries, 
196 ; ordered by Vergennes to pro- 
test against treaty of peace, 196 ; 
compliments Jay's impartiality, 
200 ; on causes for Livingston's re- 
signation as foreign secretary, 205. 

McCoMB, Alexandeb, alleged connec- 
tion of Clinton with his land 
scheme, 245 ; imprisoned, 250. 

McCuUoch V. State of Maryland, 254. 

McBougall, Alexander, on Commit- 
tee of Fifty-one in New York, 26 ; 
presides over meeting of radicals, 
28 ; refuses to serve on sub-com- 
mittee of conservatives, 28 ; at- 
tempt to choose him to Continental 
Congress in place of Jay, 29 ; urged 
by Jay to induce the New York 
convention to lay taxes, 47 ; com- 
plains to Jay of difficulty in getting 
officers for militia, 47 ; begins to 
feel necessity for a stable govern- 
ment, 52 ; commends his son, a 
prisoner, to Jay, 56 ; his friendship 
for Jay, 317. 

McLaughlin, James, punished in New 
York for disaffection, 62. 

McVickar, Professor, tells anecdote of 
Jay's caution, 319. 

Madison, James, on Jay's negotia- 
tions with Gardoqui, 210 ; on Jay's 
report on the execution of the 
treaty, 215 ; on origin of " Feder- 
alist," 225. 

Maine, Sir Henry, on federal Consti- 
tution, 69 ; on Jay's interpretation 
of international law, 259. 

Malouet, Pierre Victor, opposes giv- 
ing aid to colonies, 131. 

Marbois, Marquis, directed to bribe 
Americans, 139 ; assures Congress 
of French assistance in gaining fish- 
eries, 143 ; intercepted letter from, 
to Vergennes, opposing American 
fisheries, given to Jay, 168, 169 ; 
disavowed by Vergennes, 167, 170 ; 
admits authenticity of the letter, 
170. 

Mariner, , meeting of mechanics 

at house of, 30. 

Marshall, John, follows Jay's opinion 
in Chisolm v. Georgia, 254. 



INDEX 



347 



Maryland, State of, McCulloch v., 254. 

Maryland, State of, v. Van Staphorst, 
239. 

Masserana, Prince, introduced by Jay 
to Franklin, 121 ; his kindness to 
Jay, 121. 

Maurepas, Count, opposes France 
giving aid to colonies, 132. 

Mechanics, of New York, their share 
in Revolutionary organization, 29, 
30 ; approve action of New York 
delegates to Continental Congress, 
36 ; cooperate in enforcing non-im- 
portation, 37. 

Merchants, of New York, oppose non- 
importation, 24-26; value of their 
conservative action, 27 ; first to de- 
mand common action of colonies, 
27 ; gain control of movement, 30 ; 
consider Jay their representative, 
60 ; their influence in forming Con- 
stitution of 1777, 68. 

Mifflin, Governor Thomas, prohibits 
intercourse with New York during 
yellow fever, 285, 286. 

Mirales, Spanish envoy, discusses 
western boundaries with Jay, Ge- 
rard, and others, 110 ; pleased at 
Jay's appointment to Madrid, 114. 

Mississippi navigation, desired by col- 
onies, 110 ; efforts of France to in- 
duce United States to abandon. 111, 
112, 123, 142; Jay instructed to 
retain, 114 ; desire of Spain for, pre- 
vents a treaty, 117, 118, 123; in- 
structions of Jay regarding, modi- 
fled, 123; demanded by Southern 
States, 142 ; effort of Gardoqui to 
prevent, by offer of commercial 
treaty, 208, 209 ; proposal of Jay 
to surrender for thirty years, 209 ; 
opposition to, in Congress, 210 ; 
causes of Jay's error, 210, 211 ; its 
evil effects, 211. 

" Mohawks," of New York, guard 
tea-ships, 22. 

Monroe, James, letter of Jay to, on 
territorial government, 217 ; warns 
Washington that Senate will reject 
Hamilton as special envoy to Eng- 
land, 265. 

Montmorin, Count de, French minis- 
ter at Madrid, tries to get Spanish 



alliance, 108 ; describes Spanish atti- 
tude to Yergennes, 109 ; describes 
character of Florida Blanca, 116 ; in- 
duces Jay to promise to inform him 
of course of negotiations with Spain, 
117 ; urges Jay to come to agreement 
with Spain over Mississippi, 122 ; dis- 
suades Jay from demanding a cate- 
gorical answer, 124 ; puzzles Jay by 
his silence concerning French rela- 
tions to Spain, 125 ; makes vain 
attempts to influence Spain, 125, 
126 ; on Jay's departure from Spain, 
127 ; letter of Yergennes to, on 
Spanish interests, 132 ; letter of 
Jay to, on French politeness, 152 ; 
letter of Yergennes to, on Oswald's 
commission, 160 ; tells Yergennes 
of Spanish position, 161, 167, 168 ; 
astonished at De Grasse's commu- 
nications, 172. 

Moore, William, on Revolutionary 
committees, 28. 

" Moot," club of lawyers in New 
York, 17 ; its membership and im- 
portance, 17, 18 ; its decision said 
to have been followed by Superior 
Court, 18. 

Mornington, Lord and Lady, friendly 
with Jay, 280. 

Morris, Gouverneur, opposes Jay in 
contested election case, 16 ; mem- 
ber of the " Moot," 18 ; dreads mob 
rule in New York, 31 ; moves com- 
mittee to form plan of government 
for New York, 58 ; on secret com- 
mittee to examine Tories, 60 ; 
warned by Jay to avoid suspicion 
on account of Tory relatives, 66; 
opposes vote by ballot in Constitu- 
tion of New York, 75 ; invited by 
Jay to write criticisms on Constitu- 
tion, 80 ; confers with Washington 
on defenses of Hudson, 85; letter 
of Jay to, on court duties, 87 ; on 
Vermont revolters, 95; defends 
Deane, 96 ; on low character of 
Continental Congress, 140 ; notified 
by Jefferson of absence of neutral- 
ity stipulations in French treaty, 
260; asks Jay to recommend a 
nephew to the President for ap- 
pointment, 300 ; asks Jay to be god- 



348 



INDEX 



father to his son, 311 ; his affection 

for Jay, 317. 
Morris, Jacob, disconsolate over Jay's 

defeat for governor, 250. 
Morris, Lewis, letter of Jay to, on 

independence, 54. 
Morris, Robert, thinks Deane \in- 

justly accused, 97 ; admitted to 

practice in Supreme Court, 237. 
Muhlenberg, Peter, saves Jay treaty 

in House, 283. 
Munro, Peter Jay, supported by his 

uncle John Jay, 104 ; accompanies 

him to Spain, 115. 
Murray, George, prepares Jay for col- 
lege, 8. 
Murray, Lindley, in law office with 

Jay, comments on his ability, 14. 

Nbckeb, Jacqttes, opposes proposed 
French aid to colonies, 132 ; a lib- 
eral in politics, 132. 

New England, approves New York 
Constitution, 81 ; demands fisheries 
in treaty of peace, 143, 144, 169 ; 
approves treaty of peace, 199, 200 ; 
condemns English Orders in Council, 
263 ; condemns Jay treaty, 281, 282. 

Newenham, Sir Henry, friendly with 
Jay, 280. 

New Hampshire, Tories sent to, 62 ; 
connection with Vermont question, 
94. 

New York, Assembly of. See Legis- 
lature. 

New York, Huguenots and Dutch in, 
1, 2, 8 ; merchants of, 2 ; feeling 
in, against Stamp Act, 4, 5 ; law 
practice in, 15, 16 ; opposition to tea- 
tax in, 22, 23 ; debate in, over non- 
importation, 24-30 ; elects dele- 
gates to Continental Congress, 29, 
30 ; to second Congress, 38, 39 ; 
Revolutionary committees in, 37, 
39 ; prepares to resist, 40 ; occupied 
by British, 54, 55 ; measures of de- 
fense suggested by Jay, 57 ; condi- 
tion of society and parties in, 58, 
59 ; suppression of Tories in, 59- 
66 ; voting population in, 71 ; gov- 
ernment in, organized after new 
Constitution, 79 ; Clinton elected 
governor, 82 ; growth of parties in, 



among Whigs, 83 ; invaded by Bur- 
goyne, 83, 84, 86; demoralization 
in, 87, 88 ; boundary troubles in, 
94 ; difficulties with Vermont, 94- 
96, 102, 103 ; advised by Jay and 
Congress to submit Vermont mat- 
ter to arbitration, 102 ; hard times 
in, 104 ; welcomes Jay on return 
from Europe, 205 ; growth of con- 
servative and radical parties in, 206 ; 
appoints Jay agent to settle bound- 
ary controversy, 217 ; riot in, 
against medical students, 227, 228 ; 
election of state convention, 228, 
229 ; debate in, over ratification of 
Constitution, 230-233 ; ratifies, 233 ; 
campaign of Jay for governor 
against Clinton, 240, 244-247 ; divi- 
sions of parties in, 242, 243 ; campaign 
lies, 245, 246; defeat of Federal- 
ists through legal technicalitiy, 247- 
249 ; popular feeling in, turns to- 
ward Jay, 251, 252 ; mobs in, against 
Jay treaty, 282 ; Jay elected gov- 
ernor of, 284 ; yellow fever in, 285- 
287; Jay's governorship, 285-299; 
reelects Jay, 292 ; carried by Demo- 
crats, 295 ; struggle of CouncU of 
Appointment with Jay, 297, 298 ; 
convention in, upholds Coimcil 
against Jay, 298. 

Non-importation, advocated by Sons 
of Liberty, 22 ; committees formed 
to execute, 22, 24, 27 ; unpopular 
with New York merchants, 24 ; left 
for Congress to settle, 29 ; adopted 
by Congress, 34, 35 ; enforced in 
New York, 37. 

North, Lord, driven out of office, 149. 

O'Reillt, Count, entertains Jay in 
Andalusia, 116. 

Osborne, Sir Danvers, governor of 
New York, commits suicide, 4. 

Oswald, Richard, begins unofficial ne- 
gotiations with Franklin, 149, 155 ; 
thinks Franklin means to negotiate 
without regard to France, 156 ; in- 
structed by Shelbume to promise 
independence, 156 ; receives his 
commission, 157 ; describes Jay's 
objections to commission, 157, 158, 
159 ; dreads Jay's influence in nego- 



INDEX 



349 



tiations, 159 ; remark of Franklin 
to, on Jay's lawyer-like habits, 162 ; 
reports to Shelbume Jay's demand 
for preliminary independence, 162, 
163 ; instructed to insist on inde- 
pendence forming part of treaty, 
165 ; attempts in vain to move Jay's 
determination, 165 ; receives new 
commission through Vaughan, 176 ; 
Shelbume's letter to, 176 ; reports 
Jay's refusal to be bound by France's 
relations to Spain, 179 ; assents to 
proposed draft of treaty and sends 
it to England, 180 ; explains his 
reasons for haste, 180, 181 ; con- 
sults with commissioners and Stra- 
chey, 187 ; suggests that royalist 
claims be recommended by Con- 
gress to the States, 189 ; annoyed 
at Jay's scrutiny of map, 190 ; urges 
Jay to go to England, 190 ; re- 
ports purpose of Adams and Jay to 
let war go on rather than compen- 
sate Tories, 192 ; authorized to sign 
whatever he, Strachey, and Fitzher- 
bert agree upon, 192 ; signs, 195 ; re- 
called, 197. 

Otto, , letter of, to Vergennes on 

Jay, 207 ; urges French claims upon 
United States, 215. 

Pahtb, Robebt Tbkat, 282. 

Paine, Thomas, describes Vergennes' 
political principles, 132 ; subsidized 
to write in French interest by Lu- 
zerne, 141 ; attacks Jay as enemy 
of French Revolution, 289. 

Peloquin, David, his bequest attended 
to by Jay, 202. 

Peloquin, Stephen, brother-in-law of 
Augustus Jay, 2. 

Pennsylvania, dispute of, with Con- 
necticut, 45 ; alarm in, over yellow 
fever, 285-286. 

Peters, Richard, friendship of Jay 
with, 304 ; correspondence with, 
305, 306, 307. 

Philipse family, alllied with Jays, 2 ; 
become Tories and refugees, 65. 

Pickering, Timothy, letter of Jay to, 
explaining his treaty, 274 ; later 
letter in retirement, 309. 

Pinckney, Thomas, too French in { 



sympathy to negotiate successfully 

in England, 266. 
Pitt, William, in Shelbume's ministry, 

154. 
Portland, Duke of, becomes prime 

minister, 197. 
Provincial Congress. See Legislature, 

48. 

Quebec Act, protested against by 
New York, 77. 

Randolph, EDinrND, letter of Madison 
to, 210 ; Jay treaty delivered to, 
272. 

RajTieval, Joseph, secretary of Ver- 
gennes, 166 ; agrees with Aranda as 
to western boundaries of United 
States, 166 ; his proposed bound- 
aries, 166 ; later disavowed by Ver- 
gennes, 167 ; against American fish- 
eries claims, 171 ; goes on secret 
mission to England, 171, 172; sus- 
pected by Jay, 172 ; describes inter- 
view with Shelbume, 173 ; opposes 
American fishery and boundary 
claims, 173, 174 ; again refers to a 
" conciliatory " boundary, 179, 182 ; 
upholds Tory claims, 190 ; goes to 
London, 191 ; remark of Vergennes 
to, about American treaty, 196 ; 
says it is a dream, 196. 

Reform Bill in England, opinion of 
Jay on, 308. 

Remsen, , refuses to serve on 

conservative committee in New 
York, 28. 

Revere, Paul, brings messages from 
Boston to New York, 25, 26. 

Ridley, , describes to Adams Jay's 

part in negotiations, 182. 

Rivington, James, pleased with con- 
servative composition of Committee 
of Fifty-one, 25 ; publishes false 
statements, 37 ; his press destroyed 
by Connecticut men, 46. 

Robinson, Dr. Beverly, asks Jay to 
take care of his family while hs 
makes up his mind which side to 
take, 65. 

Rockingham, Marquis of, forms min- 
istry pledged to make peace with 
America, 149 ; death, 154. 



350 



INDEX 



Rogers, Xicholas, describes Deane's 
activity in Paris, 98. 

Romer, Lawrence, Jay's landlord dur- 
ing part of college course, 10. 

Savaob, James, anecdote on popular 
execration of Jay treaty, 282. 

Schuyler, Philip, corresponds with 
Jay, 56 ; asks Jay to defend his 
reputation, 57 ; discusses military 
measures with Jay, 82 ; unsuccess- 
ful candidate for governor, 82 ; on 
Clinton's abilities, 82 ; surmises 
British plans of attack, 83 ; morti- 
fied at loss of Ticonderoga, 83 ; let- 
ter of Jay to, objecting to removal 
of legislature to Albany, 84 ; threat- 
ens to punish Vermont if it accedes 
to Burgojme's proclamation, 95; 
virges Jay to oppose Clinton for 
governor, 206 ; urges him to adopt 
electoral district scheme, 295. 

Scott, John Morin, member of 
"Moot," 18; on committee to pre- 
pare plan of government for New 
York, 58. 

Scott, Sir William, friendly with Jay, 
280. 

Seabury, Bishop, seized by patriots, 
46. 

Sears, Isaac, radical leader in Kew 
York, 25 ; refuses to serve on con- 
servative committee, 28. 

Shaw, , on Revolutionary com- 
mittees in New York, 28. 

Sheffield, Lord, considers that Jay 
duped GrenviUe, 279. 

Shelbume, Lord, sends Oswald as un- 
official emissary, 150 ; forms minis- 
try, 154 ; announces intention to 
make peace with America, 154; 
sends Vaughan to Paris, 154; de- 
nies reported intention not to grant 
independence, 156 ; his intentions 
explained, 156, 157 ; warned by 
Vaughan against Rayneval, 172; 
supposed communication from, to 
Vergennes through De Grasse, 172 ; 
discusses American fishery and 
boundary claims with Rayneval, 
173, 174 ; gives new commission for 
Oswald to Vaughan, 175 ; reasons 
for his action, 176 ; seeks to get 



Toijr indemnity, 192; tries to co- 
erce commissioners, 192 ; really 
obliged to make peace, 192 ; driven 
from office, 197. 

Sheridan, R. B., resigns office, 154. 

Sinclair, Sir John, his friendship with 
Jay, 280. 

Skene, Governor, Vermont summoned 
by Burgoyne to submit to, 95. 

Slavery, in New York, not prohibited 
by Constitution, 80 ; act passed for 
gradual manumission, 217 ; soci- 
ety for encouraging emancipation 
formed, 217 ; bills to abolish, de- 
feated in New York, 288, 291; 
emancipation carried, 293 ; Jay's 
attitude towards, 293-294, 309. 

Smith, Colonel William, his appoint- 
ment asked by Adams, refused by 
Jay, 216 ; his wife describes Mrs. 
Jay's dinners, 218. 

Smith, Melancton, leader of anti- 
Federalists in New York conven- 
tion, 231 ; moves conditional ratifi- 
cation, 232. 

Smith, William, has Peter Van Schaack 
as clerk, 13; member of "Moot," 
his later career, 18 ; on committee 
to prepare plan of goveroment for 
New York, 58. 

Sodersheim, , tells Jay news from 

New York, 250. 

Spain, its aid in Revolution sought by 
France, 107, 108 ; reluctant to enter 
war, 108 ; dislikes United States, 
109 ; makes treaty of Aranjuez, 110; 
efforts of Gerard to bring about 
treaty between Spain and America, 
112, 113 ; failure of Lee in, 114 ; 
policy of toward Jay, 117-120 ; dis- 
turbed by congressional drafts on 
Jay, 118, 119 ; refuses to lend 
money, 119, 120 ; futile negotiations 
with, 123, 124; its purely selfish 
policy, 125, 129 ; not ready for 
peace in 1782, 149 ; fears America, 
if offered independence, will aban- 
don war, 161 ; argues against claims 
of States to western territories, 
165, 179, 191 ; last attempt to nego- 
tiate with, 178, 179 ; sends Gardo- 
qui to negotiate treaty concerning 
Mississippi navigation, 208-210. 



INDEX 



351 



Sparks, Jared, upholds Franklin's 
view of sincerity of French court, 
185. 

Spencer, Ambrose, makes motion com- 
plimentary to Jay, in New York 
Senate, 288. 

Stamp Act, feeling against in New 
York, 4 ; its repeal expected to help 
business, 14. 

Stevens, John Austin, on Jay's repu- 
tation for justice, 233. 

Stewart, Dugald, his friendship with 
Jay, 280. 

Stirling, Lord, disarms suspected To- 
ries, 45. 

Stoope, Rev. Peter, eccentric Swiss 
pastor, Jay's schoolmaster, 8. 

Story, Joseph, on Jay's judicial emi- 
nence, 262. 

Strachey, Henry, sent to urge modifi- 
cation of draft treaty, 181 ; his in- 
structions, 181, 182 ; meets the com- 
missioners, 186 ; pleased with pro- 
posal to separate British debts from 
Tory compensation, 188 ; his skill 
described by Adams, 188, 189 ; urges 
compensation to royalists, 189 ; re- 
turns to England with articles and 
map, 189 ; reports objections of cab- 
inet to Tory article and fisheries, 
193 ; admits that Tory restitution is 
not the ultimatum, 193 ; tries to 
substitute "liberty" for "right" 
of fisheries, 194 ; judgment of 
treaty, 194. 

Stuyvesant family, connected with 
Jays, 2. 

Sullivan, John, in Burgoyne cam- 
paign, 84 ; receives pension from 
Luzerne, 145. 

Supreme Court of New York, its 
continuity with colonial court, 85, 
86 ; has little business, 87. 

Supreme Court of United States, its 
novelty, 235 ; organized, 236 ; Jay 
appointed as chief justice, 236 ; as- 
sembles to organize, 237 ; circuits 
of, 237, 238 ; first charge to a Fed- 
eral grand jury, 237, 238 ; decides a 
law unconstitutional in Haybum's 
case, 240 ; decides against State 
sovereignty in Chisolm v. Georgia, 
252-255 ; decides that a treaty over- 



rides state law, 255 ; upholds neu- 
trality proclamation, 259 ; impor- 
tance of its action, 259, 260-261, 
262. 

Templr, , received as British con- 
sul, 215. 

Thaxter, , his services offered to 

Jay by Adams, 183. 

Thomson, Charles, describes deprecia- 
tion of paper money, 121. 

Thurman, , on Revolutionary com- 
mittee in New York, 28. 

Tompkins, Daniel D., on interpreta- 
tion of constitutional powers of 
Council of Appointment, 298. 

Tories, oppose non-importation, 25; 
attempt to prevent election of dele- 
gates to Congress, 38 ; disarmed in 
Queen's County, New York, 44 ; at- 
tacked by men from Connecticut, 
46 ; their strength in New York, 59 ; 
severe measiires against, 59-66 ; con- 
spiracy of, against Washington, 60 ; 
really saved from worse fate by 
Jay, 63 ; attitude of Jay and others 
toward, 63-65 ; commit ravages, 65, 
121 ; conditions of pardon to, 79 ; 
bUla against, 89, 90 ; question of 
their compensation in treaty of 
peace, 155, 164, 180, 188, 190, 191, 
193, 194 ; encounters of Jay with in 
London, 202, 203; disappear from 
New York with outbreak of Revo- 
lution, 241 ; bitter feeling against, 
242 ; legislation against, 242. 

Townsend, Samuel, on committee to 
prepare plan of government for New 
York, 58. 

Townshend, Charles, in Shelbume'a 
ministry, 154, 156 ; offers, for min- 
istry, to waive British debts and 
Tory claims rather than admit in- 
dependence as preliminary, 164 ; 
letters of Oswald to, 192. 

Trade of Colonies, effect of restric- 
tions upon, 4, 5. 

Treaty of peace, preparations for, 
see Diplomacy of the Revolution, 
135-148 ; uno£9cial negotiations of 
Franklin with Oswald and Oren- 
ville, 149-157 ; separation of French 
and American negotiations, 150, 151 ; 



\ 



352 



INDEX 



articles selected as basis for negotia- 
tion, 155 ; discussion over Oswald's 
commission, 157-178 ; position of 
French court against American 
claims, 160 ; attitude of Americans, 
161-163; position of Englisli, 164, 
165 ; discussion of boundaries, 166- 
168 ; of fisheries, 169-171 ; mission 
of Rayneval to England, 171-174; 
counter mission of Vaughan, 175 ; 
change in attitude of Americans 
toward France, 177, 178 ; they re- 
fuse to be bound by French rela- 
tions with Spain, 179 ; draft of 
treaty made, 179, 180 ; effect of re- 
lief of Gibraltar on English posi- 
tion, 181 ; renewed discussion over 
boundaries, fisheries, Tory compen- 
sation, 181, 182 ; alteration in Amer- 
ican policy produced by agreement 
of Adams and Jay, 182-188 ; agree- 
ment upon British debts, 188 ; upon 
boundary, 188 ; upon fisheries, 188, 
189 ; upon Tory compensation, 189 ; 
renewed discussion upon fisheries 
and Tories, 190-194 ; eventual agree- 
ment and signing, 194, 195 ; feeling 
in France concerning, 196 ; formal 
conclusion, 197, 199; attempts by 
coalition ministry to modify, 197, 
198 ; attempt to incorporate com- 
mercial articles fails, 198 ; comment 
on the treaty, 199, 200 ; not fully 
carried out by England or States, 
214, 215. 

Troup, Colonel Robert, friendship for 
Jay, 56 ; tells anecdote of Jay's 
caution, 319. 

Trumbull, John, Jay's secretary on 
English mission, 268 ; describes 
voyage, 269 ; letter of Jay to, on 
impartiality, 322. 

Trumbull, Jonathan, gives Jay per- 
mission to get cannon from Con- 
necticut, 56. 

Tryon, Governor, works against pa- 
triots, 45 ; his great activity, 60. 

Turgot, a liberal in politics, 132 ; 
does not desire colonial success, 
133. 

VadilIi, , Tory refugee, snubbed 

by Jay in London, 203. 



Van Cortlandt, Mary, mother of John 
Jay, 1 ; her death, 78. 

Van Cortland, Jacobus, grandfather 
of John Jay, 1 ; from a manorial 
family, 2. 

Van Dam, Cosby v., 73. 

Van Eleeck, , military committee 

of New York meets at his hoiise, 56. 

Van Rensselaer, Jeremiah, urges Clin- 
ton to appoint new sheriffs, 249. 

Van Rensselaers, said to support Jay 
in New York politics, 247. 

Van Schaack, David, banished from 
New York as a Tory, 61. 

Van Schaack, Peter, describes duties 
of a lawyer's clerk, 13; member 
of the " Moot," 18 ; banished to 
Boston on suspicion of being a loy- 
alist, 61 ; allowed to return on pa- 
role, 64 ; still respects Jay's mo- 
tives, 64 ; and retains his affection, 
64 ; meets Jay in London, 202 ; let- 
ter of Jay to, 205 ; visits Jay in 
1818, 314 ; writes to Jay in 1826, 
314 ; friendship with Jay, 317. 

Van Staphorst v. State of Maryland, 
239. 

Vaughan, Benjamin, sent by Shel- 
bume to reassure Franklin, 154; 
returns to London at Jay's request 
to counteract Rayneval, 172, 174 ; 
describes his conference with Shel- 
burne, 175 ; gets new commission, 
175 ; praised by Jay, 178 ; urges 
Jay to go to England, 190 ; goes to 
London to explain American posi- 
tion, 191. 

Vaughan, William, letter of Jay to, 
on liberty, 290 ; correspondence 
with, 304, 324. 

Vergennes, Charles Gravier, Count 
de, declares alliance between colo- 
nies and France impossible without 
Spain, 107 ; tries to gain Spanish 
aid, 108 ; signs treaty of Aranjuez, 
110 ; considers proposed Russian 
and German intervention favorable 
to England, 125; refuses to press 
Spain in behalf of America, 126; 
American peace commissioners or- 
dered to confide in, 129 ; disingenu- 
ous with regard to Spain, 130 ; not 
in sympathy with Revolution, 132 ; 



INDEX 



353 



his motives in aiding colonies, 132, 
133 ; aids Beaumarchais in persuad- 
ing Louis XVI. to aid colonies, 134 ; 
suggests firm of Hortalez et Cie, 
134 ; opens negotiations for alliance 
with United States, 135 ; defines 
meaning of treaty, 136 ; thinks in- 
dependence of colonies a fatal blow 
to England, 137 ; wishes to keep 
United States dependent on French 
aid, 137, 138; instructs Gerard and 
Luzerne to oppose fisheries claims, 
13S ; directs them to bribe, 139 ; ap- 
proves decision of Congress not to 
insist on definite boundaries, 142 ; 
refuses to promise to help States to 
gain fisheries, 144 ; directs Luzerne 
to get Adams instructed to take no 
step without French consent, 144 ; 
pledges aid of France in securing 
American claims, 146 ; his real pur- 
pose to oppose them, 147 ; proposes 
separate negotiations for peace for 
France and America, 150, 151 ; re- 
fuses to be separated from Spain, 
150, 151 ; plans to prolong negotia- 
tions, 153 ; advises commissioners 
to be satisfied with Oswald's com- 
mission, 159, 160, 163; different 
theories of Jay and Franklin as to 
his motives, 160, 161 ; in reality 
bound by Spanish interests, 161, 
162 ; disavows Rayneval, 167 ; really 
agrees with him, 167 ; explains 
away Marbois letter, 169, 170 ; 
communications to, from De Grasse, 
172 ; on groundlessness of American 
claims, 177 ; tries to aid Aranda in 
negotiation, 179 ; condemns Spanish 
policy toward America, 179 ; faith 
of Franklin in, 1S4 ; advocates cause 
of Tories to Adams, 190, 191 ; in- 
formed of conclusion of treaty, 194 ; 
indifferent during negotiations, 195 ; 
surprised but not offended at con- 
clusion of treaty, 196; later fears 
United States may join England 
against France, and protests to 
Franklin and Congress, 196 ; ap- 
peased by Franklin, 196; tries to 
attract American trade, 198 ; re- 
ceives news of final signing of 
treaty, 199 ; on success of commis- 



sioners, 199, 200; letter of Otto to, 
on Jay's position as foreign secre- 
tary, 207. 
Vermont, claims independence, 94 ; 
frames a Constitution, 94 ; negoti- 
ates with Burgoyne, 95. 

Waek's Exbcctoks v. Hylton, 255. 

Washington, George, declaration to 
army drafted for, by Jay, 43 ; warns 
New York Convention to defend 
Hudson River, 55 ; in communica- 
tion with Jay, 56 ; conspiracy 
against, 60 ; retreats from New 
York, 66, 74, 75 ; consults with Jay 
and Morris on defense of Hudson, 
85 ; agrees with Jay in disapprov- 
ing invasion of Canada, 88, 150 ; 
optimistic letter of Jay to, 101 ; 
letters of Jay to, on confedera- 
tion, 220, 223; letter of Jay to, 
on Southern disunion, 230; ap- 
proves Jay's course in Constitutional 
Convention, 233 ; offers Jay choice 
of federal offices, 235 ; nominates 
him for chief justice, 236 ; issues 
neutrality proclamation, 257 ; advo- 
cates peace with England, 265; 
wishes to send Hamilton as special 
envoy, 265 ; but names Jay, 265 ; 
letter of Jay to, explaining treaty, 
275 ; signs treaty, 282 ; eulogized 
by Jay, 294 ; correspondence of Jay 
with, on mules, 305 ; his affection 
for Jay, 317 ; opinion of Jay regard- 
ing his authorship of Farewell Ad- 
dress, 319. 

Watts, John, Tory refugee, meets Jay 
in London, 202. 

Wentworth, , death of, 285. 

Weymouth, Lord, dealings with Flo- 
rida Blanca, 108. 

Wharton, Francis, on Jay's judicial 
status, 262. 

White, H., Tory refugee, meets Jay 
in London, 202. 

White, Doctor, leads Council of Ap- 
pointment to force Jay to nominate 
Major Hale, 291. 

Wilberforce, William, friendship with 
Jay, 280, 281 ; correspondence with, 
304, 307, 308, 318. 

Wisner, Henry, on committee to pre- 



354 



INDEX 



pare plan of government for New 
York, 58. 

Wolcott, Oliver, Governor of Connect- 
icut, his request for a pardon to a 
forger denied by Jay, 291. 

Wythe, George, letter of Adams to, 



Yates, Abbabah, on committee to pre- 
pare a new form of government for 
New York, 58. 

Yates, Robert, on committee to plan 
a new form of government for New 
York, 58 ; supported by Federalists 
against Clinton for governor, 244. 



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